Pepperdine Global Justice Program

Brick by Brick

Holstering Star BM pistols, dressed in finely pressed tan-uniforms, wearing slouched forage caps, and showing off perfectly polished black boots, the officers of the VIP Protection Unit for the Ugandan National Police were an intimidating sight as I approached courtroom number three.  Familiar faces, though, dispel the oft intimidating pretense of dress, and from out of their gathered ranks I spotted John Were, Justice Lugayizi’s trusted bodyguard. We shook hands and he greeted me in his classic way: a softly sounded, smiling “Hello, Mr. Greer.” John guided me into the courtroom, where the gallery benches had been removed to make a u-shaped table facing two prominently situated seats reserved for Benjamin Odoki, the Chief Justice of Uganda and James Ogoola, the Principal Judge of Uganda. At the head of the room, against darkly varnished wood paneling, the crest of Uganda hung prominently with the motto, “For God and My Country,” underneath.

The courtroom that day was the designated meeting space for all High Court Justices from across Uganda, as well as all of the nation’s Division Registrars and Chief Magistrates. They had been called in from their assorted posts to discuss a series of action items, one of them being the implementation of plea bargaining. The Principal Judge had told me a few days earlier to be there to listen to the comments made and answer questions, if necessary.

Looking around the room, I spotted Justice Lugayizi and he told me to take a seat next to him at the u-shaped table. I resisted saying it was not appropriate for me to be seated with the judges, but he replied: “You and Pepperdine are practically a member of the Ugandan Judiciary now. You belong here.” I took the seat finding myself to be the only non-judge or high ranking government official in attendance, to be the only person under the age of thirty, and quite obviously the only “mzungu.” As can be expected, I felt out of place, but I did not feel unwelcome. Several judges extended their greetings and talked with me about their court and experiences in the judiciary. I met one judge who was stationed on a town along the northern border with Sudan. His face was forbiddingly tough yet his smile was infectious and he had a giddy sort of laugh. His eyes were full of expression, and when you looked at them you could just tell he had stories to tell. The northern portion of Uganda remains a tough place, intermittent guerrilla fighting still breaks out with a fanatical rebel faction known as the Lord’s Resistance Army, and he stands as one of only a handful of judicial figures in this still volatile region. Hemingway would have loved to write about a man like him.

The meeting lasted for seven hours without a single break. About two of which was spent in discussion of and sometimes debate over the implementation of plea bargaining. To start, Ms. Margaret Tibulya, the Deputy Registrar of the Criminal Division, gave a presentation on the status of plea bargaining, which was followed by a positive endorsement of its gradual implementation from both the Principal Judge and Justice Lugayizi. The reception among the judiciary was largely positive, but it was equally cautious due to the delicate considerations that will come with implementation. The threat of corruption, the risk of infringing upon defendant’s rights, and the potential for public misconceptions are real risks that must be kept at bay. The Principal Judge asked me to speak on two occasions in reply to questions raised. The first was to address potential safeguards to limit the potential for corruption. The second was to confirm the high rate in which criminal cases are plea bargained for in the US. By and large, the idea of plea bargaining here is poised for action, albeit a gradual, intentional, and closely scrutinized action.

Afterwards, I had a very late lunch with several judicial officials before seeing Justice Lugayizi one last time before the day came to a close. We again spoke about how plea bargaining’s implementation must be gradual and closely monitored. The aim being to slowly build up the practice around a core group of attorneys and to gradually expand it outward as the practice becomes more formalized.  The day’s constant talk of prudence and systematic application led me to recall a fitting quote from the Roman Emperor Hadrian. When asked how Rome would rebuild itself after being destroyed by a devastating fire, he coyly – but correctly – replied: “Brick by brick, my citizens, brick by brick.”

Such will be the mindset for plea bargaining's implementation here. Case by case and session by session a formalized process will rise upwards until a venerable structure is complete. Each action will stand on its predecessor’s placement. Every addition to the wall will be made systematically with a mason’s careful touch. It will be a definite build towards a definite improvement in Uganda’s system of criminal justice.

Greer Illingworth, JD '10

An Honored Guest

On Thursday of last week, Sean and I were invited to attend a High Court dinner honoring Lady Justice Stella Arach Amoko’s appointment to the Ugandan Court of Appeals and Justice Geoffrey Kiryawbire’s appointment to become the new Head the Commercial Court. The event was held outside on the slopping yard of a stately home. A live-band was playing and photographers were actively snapping shots of the dignitaries. White table clothes adorned and drink orders were being taken. Earlier in the day, I had vaguely been told about a “going-away party,” but as I walked up to the event location, spotted the strong security presence, and took note of the distinguished surroundings, the word “party” did not come to mind. Three other words did: “important State function.” I next thought to myself: “Good thing you didn’t change out of your suit and tie.”

Sean and I were seated with the judges; and the kind gesture was not lost on us.  I felt honored to be a guest amongst such an honorable gathering of leaders in the Ugandan government.  If it wasn’t for the continual discussion of Pepperdine, I would have thought myself a member of the State Department. The event went deep into the night, and was humorously lengthened by the ever present Ugandan sense of decorum. Whenever an official spoke, he or she first needed to recognize the presence of all the different groups of people in attendance. By the third or fourth time this occurred, I began to find it quite amusing. Each speaker in his or her slow and measured Ugandan voice began by saying: “My Lord Principal Judge [pause], My Lords [pause], Your Worships [pause], court staff [pause], honored guests [pause], family [pause], and dear friends, [pause] I speak before you...” Towards the end of the evening, Justice Kiryabwire arose with a microphone and deviated from the protocol by asking Sean and I to stand front and center before the assembly. He glowingly spoke of our backgrounds, and the work we are each individually slated to do. He spoke of the plea bargaining project and the positive change it could bring to the criminal justice system. And in closing breath, thanked us for making Uganda and the development of the rule of law a priority in our lives.

As he spoke these words, there was a video camera a few feet in front of us and behind it a massive light shinning into our faces. I could not make out anything before me.  Although I knew a gathering was ahead, I was incapable of seeing it.  My eyes did not have strength to see through the light.  Eyes are not stronger than light.  I stood motionless and yet I churned with thoughts of motion. I felt watched by this body that was otherwise invisible to me.  Yet I did not feel spied upon, I felt I was being looked at by a body that had a right to look. The feeling instilled in me a desire to live up to the kind words Justice Kiryabwire was then saying.  It made me want to be a reflection of that light greater than my eyes for that audience I could not see.

Greer Illingworth, JD '10

An Important Hour

Reminiscent feelings never seemed more confused as when I walked up to the High Court. Looking out once again onto its stately architecture, the memories of 2008 swept before me in the most unusual way. I was filled with a sense that the memories of that summer, although present and real, were not quite memories at all, or at least, not what I thought a memory to be. It was as if time had not elapsed, as if the then was also the now. Before, I had viewed memory as a sort of passive recollection, an act of nostalgia, something that is no longer an active agent in life. Here, however, the memories of 2008 seemed a living continuation of something yet to be finished. Not merely a stagnant remembrance, but something very much alive. The then was just as the now, I clumsily gathered to myself, because the full arch of the story here has yet to be written. Work still needs doing. The story needs finishing.

Joined by Sean, I walked onward not quite sure of what was running through my mind, but eager to get to Justice Lugayizi’s chambers. I was anxious to see him, and anxious to introduce Sean to this wonderful man. I hold few people in higher esteem. He has a transparent goodness about him, and for the people of Uganda, he is an indispensable jurist. Two characteristics, wholly uncommon in this part of the world, have marked his tenure in the law: integrity and courage. His conviction has sometimes got him into trouble from fellow judges and even the President of Uganda, yet he remains one of the most respected and trusted judges in the judiciary. Quite boldly, I count coming to know him as one of God’s greatest acts of grace in my life. I have learned so much from his example, and I have come to admire him immensely.

At the entrance to his chambers, I knocked and slowly pushed forward the heavy wooden door. I peered around with a big smile.  He stood up from behind his desk and approached. A large grin came across his face.  I broke protocol and unreservedly went in for a hug. I deemed this entirely appropriate since during the last visit, he teased me for being “too English.” I was ready to dispel any sense of English stoicism right from the start. “Greer (pronounced Grey-arrr),” he said in his rhythmic Ugandan cadence, “It is so good to see you. You are most welcome back!”

His chambers looked just as when I last left. Everything was just as immaculately kept as it had always been kept by him. The same furniture filled out the room. The layout was the same. “You have really come at an important hour,” he said as we found our seats, “The seeds of plea bargaining were sown during your last trip here, now the field must be tended.”  The statement excited me, invoking that primal desire of the challenge, but it also caused me to step back and begin posing some sober questions to myself: How exactly does one tend to a field not knowing if the seed planted will produce a weed or a cherished crop? By what means will this tending occur? What strategies should be employed? What procedures implemented? Cautiously, I determined that for now "tending" meant following the ancient advice of Aristotle who said: “Those who wish to succeed must ask the right preliminary questions.”  So, I spent the remainder of the week asking questions.  I gathered and assembled all of the information I could through interviews with the key players involved in the implementation of plea bargaining here.

This is what I now know: Plea bargaining’s implementation has been brief and highly informal to date yet it has yielded some very encouraging results. Justice Lugayizi and Justice Albert Rugadya, a colleague in the Criminal Division, took the initiative to be the first judges to permit plea bargaining’s application. In their two criminal sessions, Justice Lugayizi was able to dispose of nineteen out of his twenty-two cases without trial (nine by pleas of guilty, ten dismissed under "nolle prosequi"), and Justice Rugadya was able to process fifty cases in just twenty days. Equally so, they abided by policies that do much to guard against the introduction of corruption and do much to prevent any infringement upon the rights of the accused; but, improvements do need to be considered. At the request of Justice Lugayizi, I am now preparing a report that will provide recommendations for how best to move forward, and improve upon what has already been done.

The report must be completed in short order, as in two weeks, I am to travel with Justice Lugayizi southward to the town of Masaka, and be on hand as he conducts his next criminal session of forty-nine cases. The town is located directly on the equator and is just west of Lake Victoria. It was largely destroyed in the 1970’s and 1980’s during the wars for power that followed Uganda’s independence from the British. Only just recently have the inhabitants begun to bring the city back to its former self. It is a place marred in the memories of then, and here in the now, the implementation of plea bargaining will take its next step on the long march toward full formalization.

In Uganda, memory is not merely an ode to the past.  It is an active agent, touching the present unmistakably and blurring the distinctions of time.  The then and the now flow together like two violent rivers, and from out of the confluence an inimitable rushing voice can be heard. The crashing waters declare: “Work needs doing.”

Greer Illingworth, JD '10

The Man by the Water Pump

Over the summer of 2008, I along with Micheline Zamora, then a fellow Pepperdine Law student and now fellow alumnus, served as law clerks to Justice Edmund Lugayizi of the Ugandan High Court in the Criminal Division.  In that capacity, we were principally tasked with developing ideas the court could consider to better abide by its constitutional duty to provide a speedy hearing to accused persons - to process its cases more efficiently while still maintaining due process protections.  Justice Lugayizi specifically requested that we look into the practice of plea and sentence bargaining, and whether it could be utilized in Uganda.

At the time, the need for fresh ideas and bold reforms, like that of plea and sentence bargaining, was painfully evident; and today it is even more so. The nation’s case backlog is excessively high, and the judges are not permitted to issue bail, so if you are accused of a crime and the State prosecutor receives an indictment to prosecute, you are sent to what is called a “remand home” for holding until your day in court comes to be. As can be imagined this waiting period is by no means short, and the conditions are no different from that of a prison.

On one of our first days in Uganda, back in 2008, I was able to visit the nation’s central remand home at Luzirya, and see with my own eyes to the effects of the backlog.  The facility had been designed to hold approximately 300 people.  That day, it held over four times that number, and the figure was growing. There were no holding cells – merely British colonial era barracks.  Each man had been allotted a stiro-foam mattress pad and each night was lined shoulder to shoulder from one end of the structure to the other. The plaster ceiling in the barrack we entered had completely disintegrated and when inside all you saw were rotting wood beams and a tin roof.  There was a stench of sweat and body odor – no doubt exacerbated by the humid climate and overcrowding.  Under the pressure of a growing population, the prison administrators had been forced to make due by cramming in as many inmates as they could into each structure.  I asked the prison warden how long one of his inmates could expect to be on remand before having their day in court. I’ll never forget the grimace that came across his face followed by his resigned answer: “I’ve personally seen anywhere between six months and seven years, and I’ve heard of over a decade up-country.” As he spoke on, I could see passed the left of his shoulder into the remand yard where the inmates were being allowed to mill about under the afternoon sun.  I scanned across the crowd – all of them were dressed in bright yellow jumpsuits – and came to focus my attention on one inmate casually seated next to a water pumping station. He caught my gaze and smiled at me, I smiled at him, and I wondered to myself: how long has that man been in here and not had a chance to plead his innocence?

The challenging state of the Ugandan criminal justice system is the unfortunate manifestation of systemic problems of courtroom process, culture, and funding. Uganda has been a solely litigation based system for most of its modern existence with no alternative dispute resolution mechanisms in place. The culture among the attorneys is to be as adversarial as possible, employing every delay tactic and refusing to share discovery with the opposing side. In fact, defense attorney’s here typically do not even learn of the case the state plans to bring against their client until the trial begins. Further, the personnel and facilities necessary to speedily dispense justice are simply not available nor are they likely to become available in the future. The system is simply struggling on all fronts.

Micheline and I came to seriously consider plea bargaining as a means by which the backlog could be greatly reduced and a far more just and efficient administration of the law implemented. We also were cognizant of the risks it could pose if not carefully framed and implemented. Corruption could broach its ugly head and the entire benefits of efficiency destroyed by the resulting manifest injustice. Intensely mindful, we spent the better part of two months researching the intricacies of plea bargaining – particularly the different forms it has taken across the globe – and if there was a model that could be applied to Uganda. From out of our efforts, we ultimately arrived at a system we felt could be implemented effectively; a process of strict checks and balances with heavy judicial oversight during the attorney negotiation process.

We prepared a report and delivered a presentation to the Principal Judge of Uganda as well as the senior criminal justices of the High Court. At the meeting’s conclusion, there was a general excitement about the idea and the potential benefits it could bring to the administration of justice in Uganda. Later, it was reviewed by the Chief Justice of Uganda and he too signaled approval. To begin the movement towards implementation, last summer four justices came to the US to go on study tour of our criminal justice system. The trip cemented their resolve to go forward with its adoption, and for the past few months, two of the senior justices have taken the initiative to open the door for plea and sentence bargaining in their criminal sessions. Just last month, one of the justices had a criminal session of fifty cases in the rural town of Masindi. Normally such a session translates into about four months of litigated wrangling. By using plea bargaining principles, he was able to complete the session in twenty days – an efficiency realization of one-hundred days, processing the case-load in 1/6 the standard time.

The gradual implementation of the practice is now set to grow.  I am here to help as its implementation moves forward. It is not an exaggeration to suggest that plea bargaining could revolutionize the criminal justice system here in Uganda in a very positive way; but, just as easily it is not an exaggeration to suggest that it could become a vessel of tremendous abuse. Important considerations of due process and important protections against corruption and coercion need to be carefully assessed before it goes forward.

As the process moves along, I know I will be thinking back to that prisoner at Luzirya, seated beside the water pump, who smiled at me.  I never found out what he was accused of doing.  I never even got his name, but I do know that he has a God-given right to timely justice and plea bargaining is a means by which that can be facilitated. He is the motivation – the face it seems to me for the abstract work of policy and law that lies ahead.  I will be thinking of the man by the water pump.

I am so excited about the work to come.  What in life more can be more fun than creating something that could breathe a positive change into the world?

Greer Illingworth, JD '10

Learning Uganda

Sean Crane

Every day in Uganda I wake up with a sense of excitement, I’ve been here since the weekend, and there’s barely been a day I’ve woken up past dawn. It could just be the jet lag, but there’s something absolutely intoxicating about Kampala. Everything here seems wide open it’s as if you’re on the frontier in the Wild West. The pure commotion in the streets, from the number of people to the lack of traffic lights to how painstakingly close they get to cars and pedestrians while driving- it’s all like nothing I’ve ever seen. It’s a world unto itself, a culture as foreign as any I’ve come across, and I can’t wait to see what life in Kampala has in store for me.

Our first few nights in Kampala, we were spoiled by staying at one of the nicest hotels in city. We were able to enjoy the comforts of air conditioning and a scalding hot shower one last time. Since then we’ve been learning more and more what is to live like a native Ugandan. On my first night in my apartment my water went out, and didn’t return till early the next morning. The next night I arrived home from work to find the power was out, I sat in darkness for about an hour and half until it returned. Earlier that morning I had the pleasure of taking my first cold shower, which is a great way to learn how to conserve water as you don’t want that cold shower to last any longer than it has to.

Let me tell you though, there is kind of magic about Kampala and the people of Uganda that makes these inconveniences that are unacceptable in western society seem trivial and absolutely tolerable. I’ve never met a warmer culture in my life. Everyone goes out of their way to make sure you feel welcome, and they want you to love the city of Kampala as much as they do. The justices we have met so far have all expressed their gratitude for our willingness to come work in Uganda, and they have spoken volumes about the impact the relationship with Pepperdine has had on their court system.

The commercial court, which has now become the model of efficiency in the Ugandan court system, recently trained over 20 new mediators, and 9 of those have already begun to mediate cases. Justice Kiryabwire reports that since they have implemented mediation as a pre-trial measure, they have reported a 33 percent success rate in resolving conflicts in mediation, and this has made a considerable impact on their case load.

In the criminal court headed by Justice Lugayizi, they are already seeing the effects of plea bargaining, which they began using earlier this spring. Since the court is based in Kampala they will often take trips out into the country in less populated areas to service cases that are outstanding in other regions. Justice Lugayizi informed us of the substantial impact the use of plea bargaining had on a recent trip upcountry where 50 cases were to be heard. A trip such as this in the past had taken as many as 4-6 months, however, by using plea bargaining the cases were resolved in 20 days.

However, this is not to say that there are not tremendous obstacles in the Ugandan court system. The biggest obstacles they face are lack of funding, a lack of man power and resources. In the commercial court (which I remind you is the model for efficiency in Uganda) their case files are stacked on top of each other in small room located in the parking garage. The files date back to 1992, and due to past practices (that have since been replaced) not all the cases are accounted for. The files themselves are organized, but are compressed tightly by rope to ensure they fit in this small space. The simplest of copy machines with a scanner would go such a long way in Uganda. In America there isn’t a firm without such a machine, and even in our own Pepperdine library we have the ability to print and scan with ease- a privilege that currently eludes the Ugandan people much to their detriment. At this time I believe there is a single scanner in possession of the court, and I could only imagine what the capacity would be to update their system if they were able to have access to 3 or 4 machines that would allow them to computerize their files. However, in country not as well off as our own these are the struggles that you come across, and hopefully we can find ways to help alleviate the burdens the courts of Ugandan face in their struggle to fully modernize their court system.

However, I can’t emphasize enough how much of a privilege it is to take on this challenge with the Ugandan people. They go so far out of their way to make you feel at welcome and at home at times you forget that you’re the visitor. I have already met so many great people in Uganda and I have no doubt that I will meet more as my year here progresses. I only hope that I can make enough of an impact to help the Ugandan people get the justice system they deserve.

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