The clock tower of the High Court rises impressively from cream columns and archways, giving it elevation over State Square Park and a view of southern Kampala. From the tower the clock bell tolls away the hours for all within earshot as the clouds lazily pass overhead, and it serves as a reminder of the day’s business within.
Inside, the courthouse is a labyrinth of corridors and stairwells, offices and courtrooms. It is the epicenter for criminal justice in this country, and it is grossly overmatched. Here, the trials for capital offences–murder, rape, aggravated defilement, aggravated robbery, and treason–begin their journeys through the courts, but there are only five courtrooms, and they cannot reasonably serve as a forum for the thousands of crimes that are committed each year.
In each courtroom, dark-stained wood panels the walls, the judge’s bench, the witness stand, and “the dock,” where the defendant stands throughout the trial. It is an imposing place, the courtroom, and for most defendants and witnesses who enter, it is an entirely foreign environment.
Years of courtroom dramas on television and in movie theaters have introduced most Americans to our justice system, and if you were to be led blindfolded into a courtroom, you would immediately recognize where you were when the blindfold was removed. Moreover, you would be familiar with the procedure as a trial got underway.
The same is not so for Ugandans.
When an aggravated defilement trial began three weeks ago, the defendant, victim, and other participants, through their actions, revealed just how foreign a place a courtroom can be. And, sadly, how difficult the administration of justice can be in Uganda.
As the trial begins, the defendant is brought to the dock, a penalty box of sorts where he will stand for the remainder of the trial, and the charges are read by Justice Lugayizi.
The man, no older than 20, is wide-eyed as he listens. He does not understand what is being said because, like most defendants, he is either uneducated or under-educated, and speaks only broken English. So when Justice Lugayizi finishes detailing the case, the charges must be translated into Luganda, the defendant’s original language.
The translation poses several problems for the court. Certainly, it delays proceedings while the clerk must translate the words of the judge to Luganda, but then also translate anything the defendant might say back into English. Also, Luganda’s origins are thousands of years old, and the language does not have perfect analogs for words like “judge,” “attorney,” and “criminal charges,” the legalese of the courtroom.
Further adding to the problem is that no proper recording device is present in the courtroom. The official court record–the document that is supposed to represent precisely what transpires in court–is hand-written by Justice Lugayizi. There is no video, there is no tape recorder, there is no stenographer. Anything that an attorney or judge might later wish to review will be in the form of hand-written notes. And much as a judge may try, he or she cannot possibly record everything that is said, particularly after it has been filtered through an interpreter who is paraphrasing the words of the accused or a witness.
To my mind, this is the most glaring problem in Uganda’s courts. Without a true, accurate, and dependable court record, the administration of justice is impeded to a degree that would have every case in American courts thrown out on appeal were they tried by Ugandan standards.
Yet here, due to a lack of resources or funding or innovation, trials proceed. And as they do, more problems are revealed.
When Justice Lugayizi finishes reading the charges, he asks the man, “What do you have to say to these charges?”
Through the interpreter a response comes: “I don’t know about them.”
You or I understand the correct answer to this question is “Guilty” or “Not Guilty.” But because the defendant has not been to court before, has not had the luxury of seeing this type of drama unfold in a fictitious setting on television, and most glaringly because he has inadequate legal representation, he does not know how to answer this simplest of questions.
His attorney, a lawyer who privately practices but has been appointed by the state to represent this specific defendant for which she will be paid a pittance–probably no more than $15 for the entire case–has little motivation to expend energy on behalf of the accused.
Therefore, it is likely that as trial begins the defendant and attorney are meeting for the first time, and the attorney’s familiarity with the case doesn’t go beyond the fifteen minutes or so she might have spent reviewing the file prior to court.
It is obvious that the most basic legal counseling along the lines of “When the judge asks you to answer the charges, you say ‘Not Guilty,’” has not occurred. The obligations of the attorney have not been fulfilled, and it is possible that the defendant will pay with years of his life because he does not understand the nature of the proceedings.
After asking the question several different ways through an interpreter, Justice Lugayizi finally elicits a satisfactory response from the defendant: “I didn’t do it.”
The first witness called is the victim, Esther, an eight-year old girl who was only six at the time of the alleged crime. Her serious and thoughtful eyes scan the courtroom are awake with wonder. The dark wood, the ornately-robed judge, the policemen, and the visitors to the court compose a scene entirely new to her, and at times it seems as though the setting overwhelms her.
The first thing that Justice Lugayizi must do prior to questioning by the prosecutor is to ascertain whether Esther understands the nature of an oath. This is crucial because it will determine whether or not corroborating evidence is necessary in order to satisfy the burden of proof.
When asked if she knows what an oath is, she balks. Her eyes wander the courtroom, and she looks to her mother, but she is alone, and she must answer the question herself.
“No.” Her voice is nearly inaudible, but when asked to speak up, it rises softly above the hum of fans and the distant sound of traffic and pedestrians on the streets outside.
“What would God do if you told a lie?” Justice Lugayizi asks.
The girls eyes search the courtroom again. She is keenly aware of the presence of the accused man.
“Do you know what God would do if you told a lie?” Justice L’s voice is gentle, a father of six and grandfather of two, he has dealt with young children before, but Esther remains silent. She is the center of attention in this new and strange place.
Perhaps the only familiar things here are her mother, who sits next to her while Justice Lugayizi ascertains if this eight-year old understands the significance of testifying under oath, and the man accused of defiling her. With a sideward glance at him across the courtroom, she sees him, but does not ever fully turn to face him.
“Would your mother be upset if you told a lie?”
“Yes,” she says, only a whisper.
“Why would she be upset?”
Esther shrugs her shoulders.
“How do you know your mother would be upset,” Justice Lugayizi asks.
“Because she beats me.” No one in the courtroom flinches.
In America, this answer from a child in a court would likely get the girl taken from her parents by Family Services. While what you or I imagine a beating to be is likely different from that of a Ugandan, whatever is conjured does not alarm anyone in the courtroom. The beating of a child for lying not only seems to be acceptable, but an understood part of the culture.
After further probing does not reveal Esther’s clear understanding of the meaning of an oath, Justice Lugayizi determines that her testimony will not be under oath, but she can still answer questions of the attorneys.
At different times during the girl’s description of how she was raped, her mother buries her face in her hands. Her tear-streaked cheeks expose her pain as she must sit next to her daughter and listen to the horrific testimony, but she cannot speak with her, and she cannot touch or comfort her daughter.
The direct and cross-examination continues for nearly 30 minutes, at the conclusion of which, the details of what exactly transpired remains murky. The testimony is rife with inconsistency, and issues as simple as where the girl currently lives are plagued with confusion.
But a few things are clear. Without further evidence, the man will almost certainly be found not guilty; the language barrier in these courts–while certainly understandable as a product of Uganda’s tribal origins and colonial past–represents a significant obstacle to the administration of justice; the preparation on the part of both attorneys would, at the very least, suffer scrutiny of the most untrained American eye, and at most, is a criminally gross miscarriage of justice.
Ultimately, it amounts to this: In a court of law, an eight-year old girl told that she was raped. The man accused of the crime may spend the next 20 years of his life in prison although the evidence is sparse. Or he may go free even though he repeatedly raped a six-year old in her own home.
This case has not yet been resolved, but it is indicative of the confusion and difficulties that characterize the criminal cases of Uganda’s High Court.