THE ROLE PLEA BARGAINING PLAYS IN REDUCING CASE BACKLOG IN THE

CRIMINAL JUSTICE SYSTEM OF UGANDA. A CASE STUDY OF THE HIGH COURT

INTRODUCTION.

In the post Weberian era, one of the primary functions of the state has been to maintain
law and order and ensure that justice prevails. This has been a function that remained
unchanged even when the state was evolving from the police state to welfare state. The
citizens pay taxes every year to the state and officials for smooth functioning of all the
three organs of the state.1

The criminal justice system is the bedrock of political, social and economic stability of
any nation. Crime although regretful is integral part of every society. Be it developed,
developing, under-developed nations, none of them is alien to the phenomena of crime. 2
In words of Durkheim, even in a society composed of people with angelic qualities,
some kind of violation of code of rules is bound to occur. Hence, the ultimate objective
of any criminal justice systems is to keep crime rate and criminal tendencies within the
tolerate limit.3

BACKGROUND.

For a long time, case backlog stood out as the elephant in the Justice Law and Order
Sector (JLOS), especially in the Judiciary. Many, who had attempted to confront it, had
ended up with mixed results, not the least, in establishing whether they had dealt with
the tail, trunk or chest of the elephant.4 This creates a need to have a new alternative on
how the ever increasing case backlog can be dealt with and the magic bullet is Plea
bargaining.

1
Plea Bargaining : a means to an end, 2006, by Rosie Althulya Joseph, the author is a student of
National University of Advanced Legal studies, Kochi.1 This chapter has come to force w.e.f. 5-7-2006
vide notification No.S.O.990 (E), dt.3-7-2000.
2
Ashish Singh Taank, Plea Bargaining in Globalized world, Panjab University 2015, Pg. 2
3
Emile Durkheim, Rules of sociological, 1950 at Pg. 65
4
THE ROLE OF THE JLOS CASE BACKLOG REDUCTION PROGRAMME, ACHIEVEMENTS AND
LESSONS LEARNED by Gadenya Paul Wolimbwa, Senior Technical Advisor, JLOS.

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Plea Bargaining is an agreement between the prosecutor and defendant whereby the
defendant agrees to plead guilty to a particular charge in return for some concession
from the prosecutor5. Plea bargaining is the process by which the prosecution and the
defence negotiate charging and sentencing concessions in exchange for the
defendant’s guilty plea and waiver of rights.6

The concept of Plea bargaining originates from the United States and has since evolved
over the years to become a protuberant aspect of the American criminal justice system. 7
Several countries, however, have adopted various forms of this institution as part of
their criminal justice reforms to the end of reducing their own criminal dockets. These
countries include Germany during the 1970s, Guatemala in 1994, Brazil in 1995,
Argentina in 1998, Costa Rica in 1998, France in 1998, and Italy in 1989.8

The Ugandan criminal justice system can benefit from alternative dispute resolution
processes that share similar principles as Ugandan people, so that the country may be
able to improve its criminal justice system by uniting its people and strengthening
relationships amongst communities.9

In 2016, Uganda implemented the Plea bargain into its judicial system through the
enactment of the Judicature Plea Bargaining Rules Statutory Instrument No. 46 of 2016.

STATEMENT OF THE PROBLEM.

For a long time, case backlog stood out as the elephant in the Justice Law and Order
Sector (JLOS), especially in the Judiciary. Despite the launch of the plea bargain
program there are still Pro longed pre trials and back log in cases resulting in undue
delay in justice which resulted from failure to appreciate it by most victims who think it is
meant to help accused persons get lighter sentences. In a time of overcrowded criminal
dockets, plea bargaining, which ought to have been a magic bullet is yet to decongest
5
Santhy K. V. K., Plea Bargaining in US and Indian Criminal Law Confessions for Concessions,
NALSAR Law Review Vol.7: No. 1, (2013).
6
Dawn Reddy, Guilty Pleas and Practice, 30 AM. CRIM. L. REV. 1117, 1117 (1993)
7
Sulabh Rewart and Tanya Aggarwal, Wanna make a deal, the introduction of plea bargain in India
(2006) 2 SCC (Crl) J-12.
8
Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining
and the Americanization Thesis in Criminal Procedure, 45 HARV. INT=L L.J. 1, 28 (2004).
9
Hannah Gray, Can Restorative justice processes Help improve plea bargaining in Uganda’s Criminal
justice system? Pepperdine Dispute Resolution Law Journal (2019), Pg. 1

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the prisons and reduce case backlog. Plea bargain has been faced with a number of
challenges that have greatly affected its implementation to full capacity.

GENERAL OBJECTIVE.

The core objective of this study is to establish the role plea bargaining plays in reducing
case backlog in the high Court Criminal Division in Uganda.

SPECIFIC OBJECTIVES.

 To identify whether the plea bargaining process is fully complied with as required
by the Law.
 To find out how plea bargaining has reduced case backlog in the high court
criminal division.
 To find out the role of different stakeholders in the plea Bargain process.
 To find out the challenges faced by the plea bargaining process in the High Court
Criminal Division.
 To explore the redress mechanisms available to challenges faced by the plea
bargain process in the high court criminal division in Uganda.
 To make recommendation that will ensure that Plea Bargain becomes a success
in reducing case backlog. .

RESEARCH QUESTIONS.
 How has the plea bargaining process in the High Court Criminal Division reduced
case backlog?
 What are the benefits of Plea Bargaining in the High Court Criminal Division?
 What are the hindrances and disparagement facing the plea bargaining process
on its move to reduce case backlog in the High Court Criminal Division?
 What are solutions are available to the short comings that have been faced by
the plea bargain process in the High Court Criminal Division?

SIGNIFICANCE OF THE STUDY.

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  This study explains the reasons behind the increasing acceptance of Plea
bargaining, the benefits it provides along with its inherent insufficiencies and how
it will remedy the chronic depravity of case backlog that has long affected
Criminal justice system.

SCOPE OF THE STUDY.

TIME SCOPE.

This study looked at the period of between 2016 and 2023 being the time when plea
bargain has been in full force after its implementation.

GEOGRAPHICAL SCOPE

The study was conducted in the high court of Uganda.

Research Design and Methodology.

The research Approach that was adopted in this study was qualitative research
methodology which was a literature based approach. The primary source of study was
books, journals articles, speeches by different personalities that pertain to the topic of
research. It also considerably relied on international documents and reports. The study
also involved interactions, State Prosecutors, Defence Counsel and complainants.

This study mainly involves a desk review of relevant material. The bulk of this study
involves an analysis of the national laws and the jurisprudence of courts outside
Uganda. An analysis was made on the national laws governing the process of plea
bargaining and case back log in.

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LITERATURE REVIEW.
Plea Bargaining has been around Uganda for nearly a decade and many scholars have
written about and tried to contextualize it in the Ugandan Perspective and others in a
regional or international scene.

Nakibuule Gladys Kisekka (2020) notes that the right to a fair hearing is a basic norm
in international human rights law, which envisages a fair trial where the accused is
presumed innocent until proven guilty. However, contemporary criminal justice
accommodates pleas of guilt subject to guilty plea standards under plea bargain
agreements, where the accused are assumed to have voluntarily waived full trials,
primarily for judicial expediency and efficiency10

Although Plea bargaining is still new a concept in Uganda, Combs notes that it has
proven to be an essential asset for criminal justice systems in the United States. 11 Kate
states that in the United States, Plea Bargaining has proved to be essential in the
criminal justice system, as over ninety percent of cases resolved through plea
bargaining in the Country.12 According to Adebayo, it can be said that the concept of
plea bargain in Nigeria is laudable as it is designed to enhance speedier dispensation of
justice and to curb the ever rising awaiting trial prison population.13

Adekunle notes that the prosecution may also accept plea bargaining so that they
could be assessed and evaluated in accordance with the rate of convictions they
recorded since plea bargaining cases invariably result in conviction. Equally, the heavy
case-loads of the prosecution are easily reduced by the number of cases in which plea
bargaining has been successfully pleaded and this invariably helps the prosecution to
dispose of some of its cases.14

10
Nakibuule Gladys Kisekka | (2020) Plea bargaining as a human rights question, Cogent Social
Sciences, 6:1, 1818935, DOI: 10.1080/23311886.2020.1818935
11
Nancy Amoury Combs, copping a plea to Genocide: The Plea Bargaining of international crimes. 151 U.
PA.L.REV.1,8(2002)
12
Kate Kovarovic, Pleading for justice: the availability of plea bargaining as a method of alternative
dispute resolution as the international criminal court, 2011 J. DISP.RESOL. 283,289 (2011).
13
Akintunde Adebayo, A Review of Plea Bargain Concept in the Anti- Corruption War in Nigeria, 2018
14
T. Kehinde Adekunle, Plea Bargaining and the Nigerian Penal system: Giving Judicial Imprimatur to
corruption? By Institute of African Studies, University of Ibadan, Nigeria.

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Principle judge Mr. Yorokamu Bamwine (as he then was) argued that the outcome of
plea bargain should not be a mere handshake to the accused person but rather
punishment. The accused person not take advantage of the plea bargain process to get
ridiculously low sentences just because they plead guilty.15

Hon. Justice Stephen mubiru argues that apart from the argument that trials are not
effective to expose the truth because they are limited in finding whether the criminal
standard of proof has been satisfied on specific charges, such that compliance with
rules of evidence, which often exclude important information, limits their truth-finding
ability, the problem is compounded by plea bargaining in which the admitted facts are
limited to those in the plea agreement, which might not always reflect the entire factual
and legal basis, even though a measure of truth may emerge from such proceedings.16

Oren Bar-GillOmri Ben-Shahar (2009) stated that had accused refused to settle, many
of them would not have been charged or would have escaped with lenient sanctions.17
But such collective stonewalling requires coordination among the accused, which is
difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and
targeting her plea offers, can create conflicts of interest among accused, frustrating any
attempt at coordination. The substantial bargaining power of the resource-constrained
prosecutor is therefore the product of the collective action problem that plagues the
accused.18

The reviewed literature in this work doesn’t provide how case backlog has reduced due
to the introduction of Plea bargaining in the Criminal justice system in Uganda. This
work provides an analysis and discussion that will fill the lacunas not covered by the
above literature.

15
Justice Bamwine Yolakamu PJ (as he then was) in Daily Monitor of November 2018.
16
Stephen Mubiru, Plea Bargaining Within the Context of Transitional Justice: Exploring its Potential for
Promoting Peace and Accountability in the Wake of International Crime in Uganda, UTRECHT
UNIVERSITY, 2011.

17
Oren Bar-GillOmri Ben-Shahar Journal of Legal Analysis, Volume 1, Issue 2, 1 July
2009, Pages 737-773, retrieved from https://doi.org/10.1093/jla/1.2.737 Accessed on
8/10/2023.
18
Ibid.
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