5 January 2014

Uganda Needs a Public Defender's Office

There exists an important but often ignored flaw in our judicial system that ought, as a matter of urgency, to be addressed.

This flaw ought to be addressed as a way of ensuring that justice is better served to an accused person incapable of affording or accessing the right to legal representation.

A fundamental principle of the Commonwealth system of justice, adopted by Uganda as a result of our colonial past, is the 'presumption of innocence' which provides that one is presumed innocent until proven guilty by a competent tribunal.

This principle, as enshrined in the Constitution under Article 28, forms the bedrock of the trial process. Under the Ugandan judicial system, a number of offices exist whose mandate it is to prove one's guilt. The flaw in the judicial system arises from the presumption that these offices are charged with prosecuting and proving othe suspect's guilt.

So, when they fail to prove the guilt, then such a person is automatically assumed to be innocent. This presumption does not hold true in this modern day and age because a lot of citizens are proven guilty not because they committed the offence but because they lack adequate legal representation to defend their cases.

Such is the nature of our judicial system, in particular the criminal justice system. On the one hand you have the state levelling charges against an accused (with the state being represented by qualified advocates), on the other, in many instances; you have the accused with no legal representation whatsoever.

Under the current legal regime, much as there are offices charged with proving one's guilt, no office exists whose mandate by law is to defend citizens caught on the wrong side of the law. This, in my opinion, is a fundamental flaw in our justice system.

There are schemes that should be applauded for providing similar services and these exist in the form of free legal aid by various organisations. This flaw can be rectified by the introduction of an Office of the Public Defender (OPD) whose mandate it is to perform the opposite of the duties carried out by the offices of the Director of Public Prosecutions (DPP) and the Inspector General of Government (IGG).

This office would be charged with providing legal guidance and assistance for everyone accused of an offence and not only limited to those charged with capital offences. Other roles and functions of the office of the OPD could include the following:

Provision of free legal advice and representation to indigent or disadvantaged citizens of the state in criminal and civil cases.

To offer free legal representation in any case, including capital and non-capital offences with emphasis on issues with emphasis on the disadvantaged in society including disabled persons, women and children.

To provide legal education in criminal cases to those who lack access to such services.

This office can also be charged with the promotion of alternative dispute resolution. In performing its duties, this office should be at the forefront of establishing working relationships with government and other civil society groups active in the area of the provision of pro-bono legal services.

An establishment of such an office will go a long way in ensuring the legal process caters for the entire spectrum of the judicial system.

The writer is a founder and director of Barefoot Law-Uganda.

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