ESTABLISHING A SMALL CLAIMS PROCEDURE IN UGANDA – KEY FINDINGS BY JUSTICE GEOFFREY KIRYABWIRE

OBJECTIVE OF PRESENTATION 1. Present a case for the establishment of a small claims procedure (SCP) in Uganda 2. Presents the key “nuts and bolts”/features of such a procedure 3. Present the key recommendations for its establishment

Is there need for a SCP in Uganda?

1. Constitutional mandate Article 126 (1) Judicial power to be exercised in conformity with the law and with the values, norms and aspirations of the people Judicial power to be exercised in conformity with the law and with the values, norms and aspirations of the people Fast, efficient and effective justice system Fast, efficient and effective justice system

Is there need for a SCP in Uganda? 2. Prior Commissioned studies The Uganda commercial justice baseline study, 2001 The Uganda commercial justice baseline study, 2001 ULRC study on small claim ULRC study on small claim Kiryabwire concept paper 2004 Kiryabwire concept paper 2004 CJRP study on civil procedure 2006 CJRP study on civil procedure Call from the executive branch

Defining a small claim 1. Pecuniary Jurisdiction Ug Shs 5,000,000/= 2. Subject Matter -Civil cases (commercial, debt recovery, landlord/tenant, negligence? ) - All but emphasis on low income and SMEs

Organisational structure Operate as a track within the Magistrates courts Operate as a track within the Magistrates courts Have its own registry Have its own registry Presided over by a Commissioner who may be a Magistrate grade 1, Justice of the peace and or an Advocate of 7 years experience Presided over by a Commissioner who may be a Magistrate grade 1, Justice of the peace and or an Advocate of 7 years experience Have a code of conduct Have a code of conduct

SCP – annexed mediation Suitable cases to be referred to independent mediation by court accredited mediators/institution mediation? Suitable cases to be referred to independent mediation by court accredited mediators/institution mediation? Successful settlements to be recorded as consent judgments Successful settlements to be recorded as consent judgments

Procedural features

All parties to appear in court with witnesses All parties to appear in court with witnesses Hearing to be handled expeditiously, informally without undue regard to technicalities but embracing rules of natural justice Hearing to be handled expeditiously, informally without undue regard to technicalities but embracing rules of natural justice Evidence to be taken on oath but no cross examination without leave of court. Evidence to be taken on oath but no cross examination without leave of court.

Procedural features Parties to represent themselves or use a legal aid scheme Parties to represent themselves or use a legal aid scheme Advocates for a fee to be discouraged Advocates for a fee to be discouraged No costs rule (each party to bear own costs) No costs rule (each party to bear own costs) Court fees and other expenses allowed by court to be paid and or reimbursed Court fees and other expenses allowed by court to be paid and or reimbursed Default judgment for non attendance of defendant Default judgment for non attendance of defendant

Procedural features Judgment to be given immediately after hearing but where not possible then on another clearly specified date Judgment to be given immediately after hearing but where not possible then on another clearly specified date Enforcement of judgement will be in the normal way Enforcement of judgement will be in the normal way No appeal allowed but review before chief Magistrate for No appeal allowed but review before chief Magistrate for - Lack of jurisdiction - Bias by commissioner - Gross irregularity or lack of fairness

Rec. 1. Financial and Human Resources Need adequate resources financial and human Need adequate resources financial and human Importance of sustainable funding Importance of sustainable funding - Case study of Zambia (1994) Financial budget to be subject of a separate study Financial budget to be subject of a separate study

Rec. 2. Political and Institutional Support Policy statements/ practice directions in support Policy statements/ practice directions in support Hosting of SCP Hosting of SCP Payment of man power expenses etc Payment of man power expenses etc Amendment/enactment of laws and rules Amendment/enactment of laws and rules

Rec. 3. Education and Training Promote SCP among stakeholders i.e. public, bench, bar, mediators, legal aid providers Promote SCP among stakeholders i.e. public, bench, bar, mediators, legal aid providers Create a SCP manual, training videos etc Create a SCP manual, training videos etc Recommend a Study tour of SCC in South Africa ( USA – DC for mediation, Arizona) Recommend a Study tour of SCC in South Africa ( USA – DC for mediation, Arizona)

Rec. 4. SCP Programme administration Dedicated oversight of programme Dedicated oversight of programme - With Programme manager Outreach programmes to target groups Outreach programmes to target groups - Colorado experience Pilot project of 2 years Pilot project of 2 years - Monitoring and evaluation with mid term review

Rec. 5. Stakeholder involvement Through User Committees Through User Committees Bar / Bench Committees Bar / Bench Committees - Pro bono credit for law society mediators etc - Discourage Advocates appearing in SCC

Conclusion Duty of courts to provide a range of dispute resolution services (and not just litigation) that address the needs and aspirations of society Duty of courts to provide a range of dispute resolution services (and not just litigation) that address the needs and aspirations of society Poorly designed intervention result in wasted opportunities Poorly designed intervention result in wasted opportunities SCP can be used to improve the judiciary’s business environment and also provide an alternative to conventional litigation SCP can be used to improve the judiciary’s business environment and also provide an alternative to conventional litigation SCP and mediation are set to be the primary 21 st century dispute resolution tools. SCP and mediation are set to be the primary 21 st century dispute resolution tools.