1. UNBLOCKING THE POTENTIAL OF THE INFORMAL JUSTICE PROCESSES. A focus on Land Justice. By Judy Adoko 19 th to 20 th March 2012.

2. 1. CONTENT 1) Processes contributing to this presentation. 2) Case study of a widow and brother in law. 3) Issues and challenges from the case study. 4) Why people choose informal justice processes. 5) Current Solutions to the challenges to access to Justice 6) Recommendations and anticipated impact

3. 2. PROCESSES FEEDING INTO THIS PRESENTATION 1. Work with Magistrates, traditional institutions, state attorneys, advocates and NGOs in the greater North looking at challenges to land justice and solutions. 2. Working with NGOs under the Northern Uganda Land Platform looking at mediation. 3. Working with the Police and clans on protection of land rights. 4. Several years of research on land in northern Uganda.

4. 3. THE CASE STUDY – (1) Deliberate Land grabbing attempts. Esther is a widow with 6 children who returned to her maiden home for treatment. Her father in law called her back because her brother in law was beginning to grab her land. She returned to her marital home in 2010 and found her brother in law had ploughed 4 of her fields.

5. 3. THE CASE STUDY CONT. (2) Stakeholders interventions. Village clan – judgment ignored. Sub county clan – summons ignored. NGO intervention – agreement not honoured, crime committed. The police intervention – at police station Widow gets back her land.

6. 4. CONCLUSION: ESTHER’S STORY IS THE COMMON STORY. In north and east of Uganda, many women, children, especially boys born out of marriage, the aged, the sick are targets of land grabbers. From our research: 50-75% widows; 80-90% unmarried women and almost 100% divorced women are victims of land grabbers Their only hope is if their land rights are protected by the clan and the State.

7. 5. ISSUES FROM THE CASE STUDY – (1) – NO ENABLING LAW. S.88 of the Land Act gives the traditional authority the power “to determine or mediate” disputes over customary land, but there are no enabling regulations to implement this. Judgements of the traditional institutions are easily ignored, leading to delay or denial of justice.

8. 5. ISSUES FROM THE CASE STUDY – (2) – THE WINNER APPEALS. Everyone is trying to help. When they fail (i.e. when they are ignored), they ‘refer’ to higher authority. Winner has responsibility to look for a body with power to enforce a ruling. It’s as though the winner of the case has to appeal!

9. 5. ISSUES FROM THE CASE STUDY – (3) – POLICE INVESTIGATIONS. The Police do not go out to investigate. They may simply arrest whoever is first accused. A land grabber can easily have a victim arrested. The Police are not well equipped to handle so many land disputes. How can the Police prosecute under S.92 of the Land Act if they do not understand land rights?

10. 5. ISSUES FROM THE CASE STUDY – (4) – CIVIL CASE BECOMES CRIMINAL. In most cases crimes are committed in the process of land grabbing because the land grabber wants to make the victim give up. And yet, the Police and some courts believe that land cases are civil cases even when a crime is committed – and yet S.92 of the Land Act makes it a crime to occupy someone else land. They wait for serious crime, e.g. murder. Assault,

11. 6. OTHER IMPLIED ISSUES – (1) - PARALLEL SYSTEM. S.88 of the Land Act and Local Council Courts Act result in parallel land justice system. This creates ‘forum shopping’. Most of them file cases in higher courts, by passing the traditional and LC courts. LC courts are currently illegal.

12. 6. OTHER IMPLIED ISSUES – (2) - KNOWLEDGE OF LAND RIGHTS S3 Land Act : says customary tenure is “governed by rules generally accepted as binding and authoritative by the persons to which it applies” The PPRR exist for Lango, Teso, Acholi, Kumam. But what status do they have in courts of law? What of other regions? Without them, how do courts, police, (or RDC) know whose land rights are violated?

13. 6. OTHER IMPLIED ISSUES (3) – HOW TO PROVE LAND RIGHTS IN COURTS. Proving land rights – in the absence of any documents – relies on word of mouth. This makes winning a case dependent on who one can go with to the Police or to Court. Costs of witness travel and upkeep to District courts (with multiple adjournments) is major barrier to justice. Need to visit the land and the cost of this visit.

14. 6. IMPLIED ISSUES (4) – TOO MANY ACTORS IN LAND JUSTICE. In the research by land platform NGOs, there are 17 land justice actors handling cases. Referrals by everyone. The effect of this is confusion, same cases started over and over, delay in land justice, and forum shopping. Backlog of cases in courts. Lack of trust in the system – hence mob justice.

15. 6. IMPLIED ISSUES (5) ADR DOES NOT WORK WELL IN LAND GRABBING. Mediation does not work in land grabbing context; for example data from 5 NGOs shows that in 2008 - 41 cases were resolved but no reduced to 24 in 2010. And yet cases pending increased from 96 to 137 in the same period. Powerful people look for powerful courts to give them the judgments they want.

16. 7. WHY DID WOMEN GO TO THE CLAN FOR JUSTICE? – (1) Good relationship with the clans is a must. The clan has a social responsibility to protect No-one wants to “wash dirty linen” in public. The clan will be upset if he is “reported” to outsiders before the clan. The widow relies on the clan as her witnesses.

17. 7. WHY DID ESTHER GO TO THE CLAN FOR JUSTICE? – (2) Other factors The clan knows the history of her land rights Knows what Land rights she has. Justice is much faster, nearer and cheaper. In this case, Esther got justice in two months. The people also understand this simple justice system because it is a way of life. It is about justice, not legality.

18. 8. CURRENT SOLUTIONS TO LAND GRABBING AS PER SIP3 - (1) The stories of most women are of deliberate land grabbing. Is our response (as in SIP 3) an appropriate response to land grabbing at family level? SIP 3 focuses on formal courts, more judges, more buildings, ADR, management of the judicial staff, etc. Proposed ADR is dependent on the same court system that has back log of cases.

19. 9. RECOMMENDATION – (1) Short term – The Chief Justice to issue a Practice Direction with clear land justice pathways and powers to the clans under s.88 of the Land Act, and stopping the LCs from hearing land cases. Long term: Pass a law to harmonise land justice pathways, giving the first power to the traditional justice systems with an appeal to the Magistrates Grade 1 courts.

20. 9. RECOMMENDATION – (2) Provide land administration for customary land to prevent land conflicts. Provide for simple land administration for customary tenure for people to have better evidence of their land rights and prevent conflicts. This could be in the form of planting agreed boundary trees and drawing of sketch maps with all stakeholders present and involved.

21. 9. RECOMMENDATION – (3) Understand customary land rights correctly. Customary land tenure forms 80% of the land in Uganda. The Justice system needs to ensure that the land rights under this system is understood by the judiciary, subject to Article 33 of the Constitution. Currently, Article 33 is used almost as an excuse for not knowing what the customary laws are.

22. 9. RECOMMENDATION – (4) Use the PPRR books to prove customary land rights in courts. The 1995 Constitution recognised customary tenure. Should this not mean that the customary land laws are now state laws? If this is the case, should not proving land rights be different than proving other customs? This is what we recommend, especially as some regions have documented their laws.

23. 9. RECOMMENDATION – (5) Land grabbing & their attempts to become crimes to deter land grabbing. Recognise that land grabbing is the problem and not “land evictions” Make “land grabbing” and “land grabbing attempts” a crime. Enhance the police ability to investigate land crimes and prosecute under S.92 of CAP 227

24. 10. IMPACT OF STATUS QUO – (1). Land grabbing within families and communities by the strong (wealthy, educated, men, politicians) from the weak (women, children, the aged, the sick, illiterate) will continue to spread. Impunity with people taking the law into their hands. Lack of trust in the justice system Backlog of cases in the courts.

25. 11. ANTICIPATED IMPACT– (1) Reduced backlog in Magistrates courts. Faster and cheaper justice. Prevention of land rights abuse. Improved ability of communities to prove their land rights in courts. Deterring land grabbing. Trust in the justice system. Strengthening social governance system.

26. 11. ANTICIPATED IMPACT – (2) Traditional land justice systems and the state justice systems will be working together in partnership and in harmony to give justice and not in parallel and undermining each other, without meaning to. The Judiciary will therefore have a better chance to offer “justice for all”

27. HAND OUTS TO READ. 1) Lets face up to Land grabbing. 2) Harmonisation of state and traditional systems 3) Charting the Way for Effective - Land Dispute Resolution in Uganda. 4) What land rights do people have under the rules of customary tenure?