ESTABLISHING A SMALL ESTABLISHING A SMALL CLAIMS PROCEDURE IN CLAIMS PROCEDURE IN

UGANDA – KEY FINDINGSUGANDA – KEY FINDINGS

BY JUSTICE GEOFFREY BY JUSTICE GEOFFREY KIRYABWIREKIRYABWIRE

OBJECTIVE OF PRESENTATIONOBJECTIVE OF PRESENTATION

1.1. Present a case for the Present a case for the establishment of a small claims establishment of a small claims procedure (SCP) in Ugandaprocedure (SCP) in Uganda

2.2. Presents the key “nuts and Presents the key “nuts and bolts”/features of such a procedurebolts”/features of such a procedure

3.3. Present the key recommendations Present the key recommendations for its establishmentfor its establishment

Is there need for a SCP in Uganda?Is there need for a SCP in Uganda?

Is there need for a SCP in Uganda?Is there need for a SCP in Uganda?

1.1. Constitutional mandate Article 126 Constitutional mandate Article 126 (1) (1)

Judicial power to be exercised in Judicial power to be exercised in conformity with the law and with conformity with the law and with the values, norms and aspirations the values, norms and aspirations of the peopleof the people

Fast, efficient and effective justice Fast, efficient and effective justice systemsystem

Is there need for a SCP in Uganda?Is there need for a SCP in Uganda?

2. Prior Commissioned studies2. Prior Commissioned studies The Uganda commercial justice The Uganda commercial justice

baseline study, 2001baseline study, 2001 ULRC study on small claimULRC study on small claim Kiryabwire concept paper 2004Kiryabwire concept paper 2004 CJRP study on civil procedure 2006CJRP study on civil procedure 2006

3. Call from the executive branch3. Call from the executive branch

Defining a small claimDefining a small claim

11. Pecuniary Jurisdiction. Pecuniary Jurisdiction

Ug Shs 5,000,000/=Ug Shs 5,000,000/=

2. Subject Matter2. Subject Matter

-Civil cases (commercial, debt -Civil cases (commercial, debt recovery, landlord/tenant, recovery, landlord/tenant, negligence? )negligence? )

- All but emphasis on low income and - All but emphasis on low income and SMEsSMEs

Organisational structureOrganisational structure

Operate as a track within the Operate as a track within the Magistrates courtsMagistrates courts

Have its own registryHave its own registry Presided over by a Commissioner Presided over by a Commissioner

who may be a Magistrate grade 1, who may be a Magistrate grade 1, Justice of the peace and or an Justice of the peace and or an Advocate of 7 years experienceAdvocate of 7 years experience

Have a code of conductHave a code of conduct

SCP – annexed mediationSCP – annexed mediation

Suitable cases to be referred to Suitable cases to be referred to independent mediation by court independent mediation by court accredited mediators/institution accredited mediators/institution mediation?mediation?

Successful settlements to be Successful settlements to be recorded as consent judgmentsrecorded as consent judgments

Procedural featuresProcedural features

Procedural featuresProcedural features

All parties to appear in court with All parties to appear in court with witnesseswitnesses

Hearing to be handled expeditiously, Hearing to be handled expeditiously, informally without undue regard to informally without undue regard to technicalities but embracing rules of technicalities but embracing rules of natural justicenatural justice

Evidence to be taken on oath but no Evidence to be taken on oath but no cross examination without leave of cross examination without leave of court.court.

Procedural featuresProcedural features

Parties to represent themselves or use Parties to represent themselves or use a legal aid schemea 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 No costs rule (each party to bear own

costs)costs) Court fees and other expenses allowed Court fees and other expenses allowed

by court to be paid and or reimbursedby court to be paid and or reimbursed Default judgment for non attendance Default judgment for non attendance

of defendantof defendant

Procedural featuresProcedural features

Judgment to be given immediately after Judgment to be given immediately after hearing but where not possible then on hearing but where not possible then on another clearly specified dateanother clearly specified date

Enforcement of judgement will be in the Enforcement of judgement will be in the normal waynormal way

No appeal allowed but review before chief No appeal allowed but review before chief Magistrate forMagistrate for

- Lack of jurisdictionLack of jurisdiction- Bias by commissionerBias by commissioner- Gross irregularity or lack of fairnessGross irregularity or lack of fairness

Rec. 1. Financial and Human Rec. 1. Financial and Human ResourcesResources

Need adequate resources financial Need adequate resources financial and humanand human

Importance of sustainable fundingImportance of sustainable funding- Case study of Zambia (1994)- Case study of Zambia (1994) Financial budget to be subject of a Financial budget to be subject of a

separate studyseparate study

Rec. 2. Political and Institutional Rec. 2. Political and Institutional SupportSupport

Policy statements/ practice Policy statements/ practice directions in supportdirections in support

Hosting of SCPHosting of SCP Payment of man power expenses Payment of man power expenses

etcetc Amendment/enactment of laws Amendment/enactment of laws

and rulesand rules

Rec. 3. Education and TrainingRec. 3. Education and Training

Promote SCP among stakeholders Promote SCP among stakeholders i.e. public, bench, bar, mediators, i.e. public, bench, bar, mediators, legal aid providerslegal aid providers

Create a SCP manual, training Create a SCP manual, training videos etcvideos etc

Recommend a Study tour of SCC Recommend a Study tour of SCC in South Africa ( USA – DC for in South Africa ( USA – DC for mediation, Arizona)mediation, Arizona)

Rec. 4. SCP Programme Rec. 4. SCP Programme administrationadministration

Dedicated oversight of Dedicated oversight of programmeprogramme

- With Programme manager- With Programme manager

Outreach programmes to Outreach programmes to target groupstarget groups

- Colorado experience- Colorado experience

Pilot project of 2 yearsPilot project of 2 years- Monitoring and evaluation with mid term - Monitoring and evaluation with mid term

reviewreview

Rec. 5. Stakeholder involvement Rec. 5. Stakeholder involvement

Through User CommitteesThrough User Committees Bar / Bench CommitteesBar / Bench Committees- Pro bono credit for law society Pro bono credit for law society

mediators etcmediators etc- Discourage Advocates appearing in Discourage Advocates appearing in

SCCSCC

ConclusionConclusion

Duty of courts to provide a range of dispute Duty of courts to provide a range of dispute resolution services (and not just litigation) resolution services (and not just litigation) that address the needs and aspirations of that address the needs and aspirations of societysociety

Poorly designed intervention result in Poorly designed intervention result in wasted opportunitieswasted opportunities

SCP can be used to improve the judiciary’s SCP can be used to improve the judiciary’s business environment and also provide an business environment and also provide an alternative to conventional litigationalternative to conventional litigation

SCP and mediation are set to be the primary SCP and mediation are set to be the primary 2121stst century dispute resolution tools. century dispute resolution tools.