ESTABLISHING A SMALL CLAIMS PROCEDURE IN UGANDA – KEY FINDINGS

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

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

3. Is there need for a SCP in Uganda?

4. Is there need for a SCP in Uganda? • 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 • Fast, efficient and effective justice system

5. Is there need for a SCP in Uganda? 2. Prior Commissioned studies • The Uganda commercial justice baseline study, 2001 • ULRC study on small claim • Kiryabwire concept paper 2004 • CJRP study on civil procedure 2006 3. Call from the executive branch

6. 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

7. Organisational structure • Operate as a track within the Magistrates courts • 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 • Have a code of conduct

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

9. Procedural features

10. Procedural features • 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 • Evidence to be taken on oath but no cross examination without leave of court.

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

12. Procedural features • 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 • No appeal allowed but review before chief Magistrate for • Lack of jurisdiction • Bias by commissioner • Gross irregularity or lack of fairness

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

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

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

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

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

18. Conclusion • 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 • 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 21st century dispute resolution tools.