popular justice and policing from bush war to democracy: uganda 1981–2004

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InternationalJournal of the

Sociology of LawInternational Journal of the Sociology of Law

32 (2004) 333–348

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Popular justice and policing from bush war todemocracy: Uganda 1981–2004

Bruce Baker�

Coventry University, 23 Arden Grove, Ladywood, Birmingham B16 8HG, UK

1. Introduction

The National Resistance Army (NRA), led by Yoweri Museveni against the Oboteregime in Uganda, saw itself as a people’s army leading a people’s war. The bush war1981–1986 was, according to an NRA political commissar, no mere elite powerstruggle; it was a revolution aimed at replacing the old regime, ‘with structuresmoulded during the course of the struggle by the masses in accordance with theirinterests and the demands of the times’ (Ondoga ori Amaza, 1998, p. 28). Thosestructures were to be institutions of self-government down to the village level thatincluded justice and policing. Fresh from the Frelimo training camps ofMozambique, the NRA leadership was enthralled with the possibilities of ‘popular’justice: a justice that was said to be popular in form because its language was openand accessible; popular in functioning because its proceedings involved activecommunity participation; and popular in substance because judges were drawn fromthe people and gave judgment in the interests of the people (Museveni, 1997, p. 30).They no longer followed the Weberian tradition that the state alone should make lawand establish order; that ‘rational bureaucracy’ and formal justice were the veryessence of the modern world (Weber, 1954). Instead, they recognised that norms andsystems of ordering can also arise spontaneously and that from time immemorialpeople had generated their own forms of popular justice. The issue was not that the

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B. Baker / International Journal of the Sociology of Law 32 (2004) 333–348334

people followed non-state or informal justice, but that they pursued a justice thatwas relevant to them. It was this that the young radicals wanted to capitalise on.Popular justice, they believed, could become a school of self-governance whichtaught people the social habits of co-operation.Popular justice is defined by Merry as an informal process ‘for making decisions

and compelling compliance to a set of rules’ (Merry, 1992, p. 162). But a better senseof what was driving Museveni and his colleagues is gained by listening to a socialistMozambican lawyer (and Frelimo activist) speaking in 1983. Albie Sachs speaks ofMozambique’s new popular tribunals where, ‘the people solve their problems,applying progressive new kinds of norms y and they achieve a very large degree ofinvolvement and support from the community in general’. He tells of his joy in seeingjustice ‘transformed into a true instrument of community expression’. In contrast heobserves formal courts that were still ‘out of touch with the anxieties and passions ofthe poor’, and where law officers were still ‘mentally colonised by the formulae, bythe ideas, by the values of the past’ (Sachs, 1990, p. 117–118, 123). These were theideals that Museveni was determined to follow and these were the mistakes he wasdetermined to avoid as he began his own revolution.

2. Popular justice during the bush war

In terms of the prevention of crime and the response to crime, the people hadbeen abominably served by the Obote government agencies. His regime, far fromdistancing itself from the previous Amin regime, only perpetuated state initiated(or condoned) murder, torture, looting, rape, terrorism and imprisonment ofopponents. The head of state and the security forces were above the law and thoseable to call them to account, the judiciary, were themselves politicised andcorrupted. The process also contaminated those authorised to prevent suchoccurrences, the police. ‘They could not bring suspects to justice for fear ofvictimisation. Cases which involved the army against the people could not beinvestigated by the police in case evidence was obtained to convict army personnel’(Kabwegyere, 1995, p. 228). If the police were reluctant to investigate abuses by thestate security forces and powerful political figures, the public were equally reluctantto report crimes by them. Serious crimes were thus committed with impunity.The state of Uganda had nothing to offer the people of Uganda by way of law andorder.As the Obote regime lost its grip in the course of the war, so the NRA established

in the areas they controlled, a tiered structure of Resistance Councils (RCs) at village(RC 1), sub-county (RC 2) and county (RC 3) level. The NRA was determined toprove it was not a militarist organisation but a militant organisation:

A Militarist Organisation would mean that the NRM sees its mission in thestruggle as creating a military machine to defeat Obote without any politicalprogramme and structure among the people. On the other hand if NRM is aMilitant Organisation, it would mean that it primarily has a political programme

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and a political structure among the people in addition to its military structure(Directorate of Information and Mass Mobilisation, 1990, p. 149).

The foundational administrative unit was the village or RC 1. All the adult peopleof a village formed the RC 1, from which they elected a committee of nine to run thelocal affairs of the village on a day to day basis. According to Museveni’s Ten-PointProgramme, the aim was that the committees would:

deal with law-breakers in co-operation with the chiefs and police, take part indiscussing local development projects with government officials but, above all,they would be political forums to discuss relevant issues concerning the wholecountry and act as forums against the corruption and misuse of office by the chiefgovernment officials (Museveni, 1986).

In areas held by Obote’s forces, the focus of the RCs was inevitably onrecruitment, gathering intelligence and mobilising food for the NRA. They alsohanded out ‘justice’ to those suspected of supporting the government andparticularly those who acted as guides to Obote’s soldiers to identify and kill‘Museveni’s guerrillas’.

We concentrate on neutralising armed opponents y notoriously anti-peopleelements who persistently undermine the struggle, especially by causing the deathsof civilians and our fighters, will not escape their just reward. For he whoexcels himself in committing anti-people crimes, turns himself into a legitimatemilitary target and earns his death as a just retribution and deterrent (Museveni,1986, p. 51).

As ‘liberated areas’ were established, RCs came into their own as local expressionsof participatory democracy and government. This particularly applied to the LuweroTriangle in central Uganda. Museveni later boasted: ‘By August 1981 we had alreadycreated no-go areas for the government and our civilian committees, not the army,administered these areas and adjudicated cases’ (Museveni, 1997, p. 134). From thebeginning, the RC 1, 2 and 3 were given responsibility, not just for administrativefunctions, but for law and order. They undertook settling disputes and adjudicatingcases within the local communities. They not only replaced government structures,but roles formerly undertaken by the chiefs, who had been so discredited by politicalappointments and partisan activity as to have lost all legitimacy. The progressiveintroduction of RCs into the liberated territory ensured that no power vacuum wasleft by the sweeping away of the old order. The RCs took hold at the local level evenbefore the state had fully established itself.Unfortunately no record exists about how the RC courts functioned in their

earliest days before they were institutionalised and incorporated into a state system:

Little analytical work has been undertaken with respect to their [RCs] nature andoperation during this period y Even less has been written about the judicialpowers that the RCs exercised during this period (Barya and Oloka-Onyango,1994, p. 9).

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But though the details are unclear, ‘popular justice’ was the only method of justiceand policing known during the bush war period. Law and order at the local level wasin the hands of the community alone.

3. Popular justice under NRM rule

By January 1986 the NRA had taken the capital Kampala and its political wing,the National Resistance Movement (NRM), sought to extend the Resistance Councilsystem to the whole country, with the aim of providing, inter alia, a system ofcommunity controlled policing and justice (Oloka-Onyango, 1989). All remainingchiefships were dismantled and the chiefs had their judicial (and legislative andexecutive) powers handed to the RCs. The RCs were now to exist alongside theformal state system and to relate to it. Neither held the monopoly they had been usedto. Popular justice through local courts and local policing would concern itself withlocal civil matters; the state through its courts and police had concurrent jurisdictionover civil matters, would assume jurisdiction for criminal cases, for appeals fromRCs, and would engage in crime prevention and detection.The process of institutionalising the judicial functions of the RCs began in

1987 with the Resistance Councils and Committees Statute. This provided for thejudicial functions of the Resistance Committees, whilst the parameters of thisfunction were defined by the Resistance Committees (Judicial Powers) Statute of1988. The then Minister of Justice and Attorney-General, said it was necessary togive judicial functions to RCs so as to reduce the congestion in the magistratescourts; because magistrates were not always aware of local customs; becausecorruption would be reduced if nine people decided a case together; and because thehigh cost of litigation in the magistrates courts deterred many people from seekingjustice.A number of safeguards were introduced. For fear that if the RC courts were to

implement customary law they would be implementing laws that were discriminatoryagainst women, it was required that at least one-third of the executive committee ofthe RC1 and 2 s (i.e. the court officers) were to be women; and at least one womansat on the court (a number increased to three in 1998).The jurisdiction of the RC courts was limited to three areas: First, civil matters

concerning debts, contracts, assault and/or battery, conversion and/or damage toproperty and trespass (provided that the value of the subject matter in dispute didnot exceed U.Shs 5000); second, civil matters that were governed only by customarylaws; third, matters arising out of infringement of bye-laws. At the time it wasassumed that RC court officials would be sufficiently aware of state law to recognisewhere customary law was contradicted (and therefore nullified) by an existingstatute. Hence no institutionalised mechanism was included in the statute to ensurethat the LCs would actually be trained in the law. As regards penalties, RC courtswere to have the power to make an order for reconciliation, declaration,compensation, restitution, costs, apology, and attachment and sale. In the case ofan infringement of a byelaw, the courts could impose a fine.

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In summary, the popular justice system of the guerrilla war was curtailed andregularised. RC Courts at village, parish and sub-county levels were legallyestablished and their jurisdiction, powers and procedure strictly defined. They wereplaced within the jurisdiction of formal Magistrates’ Courts and had an internalsystem of appeals and a special appellate procedure to the Chief Magistrates courts.The NRM government no longer saw RC courts as offering a new model of justicefor all. Instead, it was intended that RC courts should offer an alternative justiceroute to the technical, less accessible and expensive formal court system and beexpressions of popular justice. People could still use the magistrates’ courts, but theywould have the availability of RC courts as well. The RC courts would be availablein people’s own villages, use the local language, be presided over by people knownand trusted (and elected), use straightforward and informal procedures and allowpopular participation in the settlement of their own disputes. The law applicable andthe remedies available would also follow local customs. Meanwhile, given the severerestraints on the availability of the Uganda Police, the RC undertook responsibilityfor security and crime prevention, which often meant organising local patrols.Again, the intent was to supplement state provision, not to replace it; and it wasexpected that the police would be summoned in criminal matters.Anecdotal evidence soon after their formal institution suggests the popularity and

effectiveness of these LC judicial and policing structures:

Most of the local committees’ time is spent on judicial work. This is immenselypopular with ordinary Ugandans because in the past justice was only for thosewith money. Now resistance committees judge cases of assault, criminal damage,land, paternity and inheritance disputes. The committees even intervened whenthe National Resistance Army was itself guilty of some gruesome human-rightsabuses y In Mbale, committees have arrested corrupt co-operative officials,summoned bank managers and magistrates to explain lapses in duty and arrestedsoldiers who have taken bribes. The system is not perfect. In Tororo and IngangaCatholics who suffered under local despots have taken over the committees and‘revenged’ themselves on Protestants by arranging their arrest. The committeeshaven’t stopped Karimojong warriors raiding cattle. Nor have they liberatedwomen—or often sided with them. They have not made poor people rich. But thecommittees have great popular support y ‘They are the means by which we canpull this nation up from the days of terror,’ says one official in downtownKampala (Watson, 1990).

Khadiagala, however, believes that ‘although enthusiasm for local councils washigh during the early years of the Museveni government, public opinion of theirjudicial capacity was mixed’. She quotes both studies that found Ugandansenthusiastic and studies that believed them to reflect too closely the interests ofthe groups that dominated the LCs (Khadiagala, 2001, p. 64–65).Now, after 20 or more years of operation, the judicial and policing functions have

become institutionalised at the grass roots level. Whereas the executive functions ofRCs have been revised twice (1993 and 1997), the judicial function has remainedlargely untouched. The name of the RCs, as that of the councils, was changed in

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1997 from Resistance to Local, but few changes have been made to their operation.The main one was as a result of the Children Statute, Statute No. 6 of 1996. By itLCs were given the power to safeguard and promote the welfare of children. The LC1 court was made the court of first instance in matters concerning the duty tomaintain a child, the right to education, immunisation, adequate diet, clothing,shelter and medical attention, the right not to be subject to discrimination, violence,abuse, neglect, harmful customary practices and harmful employment. LC 1 courtswere not only given jurisdiction with respect to all matters of civil nature concerningchildren; but also jurisdiction for criminal offences committed by children such asaffray, common assault, actual bodily harm, theft, criminal trespass and maliciousdamage to property.Though formal duties have changed only slightly, the government agenda has

moved on. The provision of a twin track for civil matters is no longer seen as theideal. Instead there have been moves to turn LC courts into the lower courts of aunified system. The first indication of the change of direction was in 1991. In thatyear there was an abortive attempt to change the judicial powers of the RCs underthe Resistance Committees (Judicial Powers) (Amendment) Bill. The bill spoke ofharmonising the relationship between RC courts and Magistrate courts, and ofrationalising the jurisdiction of RC courts. In practice this meant conferring criminaljurisdiction on the RCs 2 and 3 courts. It offered to provide for allowances formembers of the court who previously performed their duties on a voluntary basis. Itsprovisions also included making the RC 1 courts the only RC courts with originaljurisdiction, so that the choice of a magistrate’s court would be lost. RC 3 courtswere to be given power to decide all criminal offenses in which the prescribedmaximum penalty does not exceed a fine of U.Shs 20,000 or imprisonment for threeyears. In the exercise of this criminal jurisdiction, LC 3 courts had to consist of aMagistrate who would act as a secretary to the court and advise them on all mattersof law. Opposition from the legal profession showed that three years of ‘popularjustice’ systems had done nothing to convince them of its merits. In a letter to theAttorney General and Minister of Justice in October 1991, the Law Societycomplained:

the whole vesting of judicial powers into the Resistance Committees, whichcommittees are also vested with executive and legislative powers, fundamentallyoffends against the principle of separation of powers in the state of Uganda, andconsequently undermines the judicial independence of the courts. The UgandaLaw Society further submits that Resistance Committees and Councils arebasically political organs whose roles and functions are thus political in nature,and as such it is fundamentally wrong to vest them with judicial powers whichpowers must be exercised apolitically and independent of the executive andlegislature (quoted in Barya and Oloka-Onyango, 1994, p. 75).

Had there been any vocal group supporting the principles of popular justice, theytoo might have protested against this attempt to transform what was supposed to bea valuable alternative system of justice into merely a lower state court(s); to replace asystem where law is shaped by local conditions by one where law is promulgated

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from above. Though the Bill has not been redrafted or resubmitted since its rejection,the intention of the state was clear. The two parallel tracks were to become one,divided only by rank. Popular justice was to become lower court justice with popularelements.

4. Popular justice practice today

The account that follows is taken from participatory research into internal securityin Uganda, undertaken between February and April 2004.1 What is presented here isan analysis of how men and women in urban and rural settings of Uganda evaluatethe judicial and policing functions of the LC 1 (the troubled areas of the north andnorth east were not covered).Currently LC 1 duties include: the mobilisation of the local community in law and

order matters; the gathering of criminal data; the establishment of byelaws thatreflect local needs; and LC Courts2. In other words, they have a crime preventionand a crime response role. The dual nature of their work is highlighted in a survey byWunsch and Ottemoeller. When they asked, ‘how has the LC made life better’ 35 percent mentioned ‘peace and security’ and 22 per cent ‘problem solving’ (Wunsch andOttemoeller, 2004, p. 188). To examine the effect of the LC 1s on law and order inmore detail, four have been selected, two rural and two urban.

4.1. Law and order in rural villages

The fishing village of Busaabala besides Lake Victoria has a diverse ethnic mix. Giventhat the nearest Police post is 8km away, the LC 1 naturally see themselves as theprincipal law enforcers in the village. They operate a night patrol, charging all householdsU.Shs 500 per month (about 30 US cents). The LC 1 court is ready to meet immediatelyfor vital cases or on a regular weekly basis for less urgent matters, though often there arenot enough cases to warrant a meeting for a month. Typical cases handled include fightingand stealing. More than 40 villagers have been trained by the local Crime PreventionPanel as ‘crime preventers’. This has raised awareness of what the law requires and giventhe ‘crime preventers’ confidence to contact the Police for help.3

The fact that none of the men could remember a case of mob justice in recent yearsproved, in their eyes, the success of the LC 1 leadership in preserving law and orderin the village. For women, who defined law and order more in terms of responsiblebehaviour, especially by men and youths, there was less certainty. One of theirgreatest concerns was husbands that spent the income from fishing on alcohol. Itmeant that, instead of the men spending time with their families in the day or their

1The research on which this article is based is part of an ESRC funded research programme (Award

Reference: R000271293). The author gratefully acknowledges this financial assistance and that of

Coventry University, UK.2For earlier positive review of LC courts, see DANIDA (1998). For a negative account see, Khadiagala

(2001).3Focus group with LC 1 executive members and other village leaders, 10 March 2004.

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money on their families, they were inclined to disregard their duties. It led, in thewomen’s view, to ‘immoral tendencies’ and ‘made it a difficult place to raisechildren’. Women also had concerns with the LC 1. Some believed the full councilmeeting of all the village was ‘not functional’. In their eyes, those born in the villagedominated the later migrants and got their way more; access was difficult becausethey feared the men might not listen to them and would give more weight to thosewith money; and the full council met only if there was a serious mater, but did notkeep to regular set dates.4

By contrast, Mugusu is a market village of 640 persons, 9 km south of Fort Portal,in the west. Since the rebel Allied Democratic Forces crisis 1998–2002, the area isdescribed as ‘safe, with only minor problems’; ‘we are really sleeping’. No one couldremember a case of mob justice in the last four years. The LC 1 do not run a patrol(though the LC 3 run a voluntary 20 strong home guard) and see little of the Police,except for the Police mobile patrol on the main road going through the village. Forthe LC 1 executive, the overall prevalence of law and order was due to the villagers’close knowledge of one another. Others, however, reported fairly regular occurrencesof petty theft, drunken fights, rape/defilement and domestic violence. Perhaps thefact that many of these were not reported or were related to the weekly market’svisitors explains the fact that the LC 1 court had few problems to attend to. Forthose market traders that were caught stealing, there was a prohibition fromreturning. The overall success in preserving law and order in the village wasqualified, however, by older persons, who defined law and order to include morality,particularly sexual morality. They expressed serious concern about young peoplefrom their village and those who were attracted to the market and the disco thatfollowed it. They spoke of unemployed school drop outs drinking too much, beingpromiscuous, taking to drugs and resorting to theft, and therefore saw them as anegative and destabilising factor in the locality.5

4.2. Law and order in urban zones

Two LC 1s were examined in the high density areas of Kampala. The first wasLuziga Zone. This is home for people from a wide variety of ethnic groups fromUganda and from Rwanda and Congo. Despite the heterogeneity and short-termresidence, inhabitants report that it is ‘98 per cent safe’ and has grown much saferover the last few years as ‘pickpocketting’ by street children has been largelyeradicated. The improvement is largely attributed to the work of the LC 1 executive,which itself is multi-racial. To tackle crime the LC 1 instigated a patrol (charging‘every door’ U.Shs 500 per month) that arrested pickpockets and others and tookthem to the LC 1 Court or Police. The LC 1 Court meets twice a week, butsometimes they can go ‘three weeks without a case’. They deal with domesticviolence, fighting and illegal buildings and claim a decrease in their occurrence. And

4Focus group with 20 women, 15 March 2004.5LC 1 Chairman, Mugusu, Sarapio Gafabusa, 1 April 2004; LC 3 Mugusu sub-county, Vice Chair, Mrs.

Mbabazi Margaret, 2 April 2004; LC 3 Karambi sub-county, Chair, Mr. Mwiraumubi Eli, 2 April 2004.

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given that four of the nine LC 1 executive are women, women are said to be freer tobring issues forward. The LC 1 also encourages others to report matters thatindividual women might be afraid to report themselves. Their success has meant thatthere have been no incidents of mob justice ‘in the last few years’. Though problemswith law and order are first taken to the LC 1 by the community, there is said now tobe a good relationship with the Police. They go to them regularly (the police post isonly 500m away) and find them co-operative and respectful. 6

Mbiro Zone adjoins Luziga Zone and is similarly diverse ethnically, having manyCongolese. Residents report that law and order has changed dramatically since 1986.Then there was a high crime rate, including murder, kidnapping of children, rape,defilement and the illegal possession of weapons. Since then crime has been greatlyreduced and this is attributed to the work of the LC 1, though they do not operate anight patrol. ‘We have power’ said the councillors, ‘as people together we fight thecrime’. None could remember when the last incident of mob justice occurred,although it had been common in the 1980s. As with Luziga, the LC 1 Court does notalways have a case to try for months on end. Typical cases include domestic violence,theft, simple assaults, land issues and disputes between landlords and tenants. Theyreadily admit that in the beginning the court was not fully aware of which cases camewithin their remit and which were the duty of the Police. But following Policetraining they now feel confident about what their legal powers are. In fact, theysometimes rebuke the Police who come to deal with a case that it is too petty forthem and should be left to the LC 1. Like the other LC 1s, they also report a markedimprovement in their relationship with the Police.7 Thus though it might have beenexpected that the rural system of collective communal control would break downwhen it came to transient, mixed ethnic and unfamiliar populations, the supervisoryand ordering functions of the LCs persists.

5. Evaluating popular justice in Uganda

Gita Honwana Welch, the Mozambican jurist, insists on three very rigorouscriteria by which popular justice should be judged:

To what extent the people are directly and on a large scale involved in the generalformulation and implementation of the law, ensuring that it is sensitive to theirwishes; To what extent the creative capacity of the people is utilized in the searchfor solutions to concrete problems of dispute and conflict; to what extent theconsciousness and behaviour of the people are transformed in the course of theirbeing active agents in the process of exercising judicial authority and solving theirown problems (Honwana Welch, 1990, p. 124).

By these standards Uganda has only ever had limited popular justice and it isdeclining. Though the people are involved in the implementation of the law through the

6Interview, Secretary, LC 1, Luziga, 12 March 2004.7Focus group with five members of the LC 1 executive committee, 12 March 2004.

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LC 1s, they are not directly involved in the formulation of that law. The search by localpeople for solutions to disputes and conflicts is largely sincere, but stays within thebounds of familiar customary and/or legally approved paths. And people are activeagents in local policing and justice, but it is unclear to what extent their consciousnessand behaviour are transformed in the process. The involvement in the LC courts ofwomen and of people from other areas or abroad, has furthered tolerance according tosome, but the evidence is not conclusive. But there are criteria other than HonwanaWelch’s that are relevant to evaluating law and order at the grassroots level.

5.1. Evaluating LC 1 courts

As regards popular justice, it is important to ask whether the LC 1 courts areaccessible physically and in terms of being user friendly and participatory? Theanswer has to be yes. LC 1 courts were commended for their service to the people.They were credited for their vigilance and active response to reported cases whenapproached. Having jurisdiction over small areas has enabled LC 1 courts to getacquainted with the people and their behaviour and facts about emerging problemsin their areas. They are ready to meet at very short notice and the lack of legalformalities or advocates makes them more approachable. As regards financialaccessibility, most regard the cost as minimal (officially the legal fee for filing in anLC I Court is U.Shs 500, though U.Shs 2000–5000 is not uncommon). LC courtsmean justice in people’s own language, from a body that respects local traditions andis in turn respected, since leaders have been chosen that are known and experienced(Barya and Oloka-Onyango, 1994; Kakooza and Okumu-Wengi, 1997). The LCcourts facilitate the dispensing of law and order at the community level whilepromoting reconciliation rather than punishment.Are their judgements enforceable? The law does not provide the LC 1s with the

power to enforce their judgements, but over 90 per cent of the DANIDA study’srespondents said that LC court decisions are enforced because people generallyrespect the collective decisions made, which are signed by the litigants and thechairman. The LC officials also appoint one of their officials to follow up the loser ofthe case to ensure compliance to the passed decision or to note if, instead,reconciliation has taken place. On the few occasions when non-observance of LC 1court decisions occurs, the accused is summoned to explain the reason. A furtherrefusal to comply leads to a fine and the case is referred to a higher LC court or chiefmagistrates court with a charge of court contempt.Do the people have confidence in them as administrators of justice? The research

on which this article is based found that most councillors have treated membershipof LC 1 courts seriously and have acted effectively. Many recognised that in the LC 1Courts they found justice when there were issues that could not be resolved by theparties concerned or by their families, clans or friends.Despite the positive benefits, there are problems.

Since popular justice relies on lay judges—usually educated, wealthier older menwho have little knowledge of law or legal process—common sense, local norms,

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and social ties guide the courts. The court’s personal knowledge of the disputantsreplaces the rules of evidence employed by formal courts of law (Khadiagala,2001, p. 64).

The common complaints from the users include withholding documents fromappellants, prohibitive court fees, lack of court records, gender bias, and nepotism. Ifthere is one area where LC 1 courts’ decisions are contested for their fairness, it isover land. Land is a serious cause of disorder and tension in rural areas. In areaswhere there is pressure for land from an increasing population, where land is beingsold to outsiders, and where land has been transferred to estates or declared anational park, land has become a contentious issue. LCs (as well as magistrates andthe Land Tribunal) face continuous civil disputes over boundaries, tenants rights,squatting, evictions, inheritance, and the sale of land that was not the vendor’s tosell. These frequently spill over into criminal cases of criminal trespass and assault.8

The largest sector of society that has cause for concern over the fairness of the LC1 courts is women. Women have claimed that in cases involving domestic violence,defilement, rape, inheritance and land, they have been treated unfairly (UgandaAssociation of Uganda Women Lawyers, 1996; Penal Reform International, 2001;Khadiagala, 2001). Even though this was largely attributed to the absence of womenon the courts, many feel the discrimination is so deep rooted that the court decisionswould be no different even with women sitting on them. It is said that there are manycases of forced marriages of girls under the age of 18 years, but when the men werebrought before the LC 1s they get off with light sentences such as paying a fine of achicken to the parents of the youth (Uganda Association of Uganda WomenLawyers, 1996). And Khadiagala recounts cases of gross discrimination againstwomen and of corruption by LC councillors to acquire land or to grant it to theirfriends (Khadiagala, 2001, p. 66–71).In the view of Justice Professor Kanyeihamba, ‘records show that the exercise of

judicial powers by some of the local councils and councillors and officials has beeninadequate, illegal and in some instances, corrupt’ (Kanyeihamba, 2002, p. 262). Thereare the problems, too, of widespread popular ignorance of the law (e.g. understandingthat ‘marriage’ to and sex with an under 18 is ‘defilement’; or that begging can beclassified as the offence of ‘idleness’). LC 1 courts also at times handle cases outside oftheir jurisdiction, such as criminal cases of rape and defilement, or cases in which thevalue of the subject matter in dispute exceeds U.Shs 5000 (DANIDA, 1998).Corroborating his view are those of Wycliffe Burungi, chairperson of the human rightscommittee of the Uganda Law Society and Justice Odoki, chairperson of the JudicialService Commission (quoted in Human Rights Watch, 1999).Further anecdotal evidence suggests that the LC 1 courts at times hand out

sentences that are beyond their powers, such as corporal punishment and banishment

8Interviews with OC Mityana Uganda Police, 31 March 2004; RDC Kabarole District, Ndiwa

Chemasuet, 1 April 2004; Administrative Secretary of land Tribunal for Kabarole District, Eva Bira

Ngeme, 1 April 2004; LC 3 Chairman, Karambi sub-county, Mr. Mwiraumubi Eli, 2 April 2004; LC 3

Vice Chairman, Mugusu subcounty, Mrs. Mbabazi Margaret, 2 April 2004; Kiko Tea Estate manager,

Mr. Kiiroya Lameck, 2 April 2004.

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from the village (DANIDA, 1998). One Police inspector commented to me, perhapswith a certain amount of understandable exaggeration and frustration, that LC Courts‘don’t know anything’ as regards the law and that they ‘lack training’.In what ways are LC 1 courts held accountable for violations of laws and human

rights? What action is taken when LC courts have exceeded their jurisdiction? TheLC Judicial Powers statute states that the Chief Magistrate has supervisory powersover the LC courts. For this reason many of those dissatisfied with LC 1 courtsresort to magistrates (Khadiagala, 2001). However, magistrates are severely limitedby distance and time: their magisterial areas can span one to three districts and beinglocated in the urban centres, they are physically remote; and the heavy case loads ofthe courts means they have little time for supervision.Are LC 1s fulfilling the judicial objectives for which they were originally created?

Yes they have retained some of the values of traditional law and policing that theyinitially incorporated into their systems: justice that is local, rapid, simple, flexible,participatory and aimed at reconciliation and solutions. To a much lesser degree theyhave imbibed some of the ‘new’ values that were asked of them concerning equaltreatment for women and the end of patriarchal and feudal patterns. But it has beenpopular elements retained within an increasingly state lower court system. As such,LC 1 courts handle most of the minor cases and provide a welcome reduction of theburden on the formal courts and the police, both of which are understaffed. But thepopular justice as originally conceived has gone with the different political context—one that requires state control, uniformity, professionalisation, and the removal ofany ‘communist’ hangovers. LC 1s are inevitably defining their court responsibilitiesdifferently from the days of the bush; or rather have had their responsibilities definedfor them differently.

5.2. Evaluating LC policing

As regards popular policing, do the people have confidence in LC 1s asadministrators of policing? The evidence suggests that LC 1s have had a remarkableordering effect on social life and have acted as the first line of protection againstserious disorder and crime (often in terms of night patrols, although these aresometimes only activated during periods of insecurity and many question theireffectiveness). Had it not been so relatively successful, one might have expected amuch greater degree of informal and illegal policing and justice in Uganda—something so common in the rest of Africa. With a popular and accessible law andorder provision, there is little space left for them to emerge.As with the courts, however, there is an important gender distinction in

confidence. Because Ugandan women often define law and order as more than theabsence of crime, their view of the policing of order is different from men. They wantprotection from irresponsible behaviour, especially by men and youths; or ‘they wantto feel comfortable and secure’.9 Some of those grievances may be prohibited in the

9Interview, Keith Kibirango, Head of Information, The Uganda Association of Women Lawyers, 24

March 2004.

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legal code, but that does not necessarily mean that either the LC 1 or the Ugandapolice will attend to it. There are those who say that LC councillors, for instance, donot see it as their business to get involved in another man’s ‘personal affairs’ and tostop him beating his wife or selling her land. And there are, of course, those activitiesthat are not illegal in the formal sense, but are nevertheless unacceptable to women,such as harassment, abusive language, drunkenness and neglect of familyresponsibilities. This gendered perspective reminds us that for a very large numberof citizens the security they are looking for is the provision of care as much asprotection. Though legal aid centres handle thousands of cases brought by womeneach year of domestic violence, inheritance disputes and failure to pay maintenance,no one knows just how large these problems are.Crime statistics may also fail to capture generational differences. Older persons,

especially in rural areas, spoke to me with concern about young people not in termsof formal crime, but of the disorder associated with their promiscuity, drunkenness,drug taking, dropping out of school and general ‘idleness’ because of unemployment.It is clear that there are sections of society that do not feel they are protected fromdisorder as they define it.Measuring the effectiveness of LC policing in preventing more traditionally

defined crime cannot be done in isolation from the Police? It needs to be rememberedjust how overstretched are the resources of the Uganda Police. Currently the UgandaPolice have 13,000 personnel—well below the 40,000 needed to provide their goal of1 per 600 citizens. Nor have they ever had adequate transport. One sub-district ofover two million has just 184 personnel and one motor bike. And Fort Portal policehave no vehicles or motorbikes to cover the town of 45,000.10 If policing onlyconsisted of the Police, then there would be serious problems. Given this absence ofthe Police from most rural communities for most of the time, much of the burden forcrime prevention falls on the LC 1s.Although most people in both villages and townships reported that ‘crime’ was not

a serious issue and that they enjoyed a sense of security, Police statistics showincreased numbers of reported crime across the country, particularly cases of theft,rape and defilement. As in most developing countries, both fear of crime andvictimisation rates remain particularly high in Uganda’s towns. Crime committed inthe capital, Kampala, is not being prevented, whether by the LCs or the UgandaPolice. Some 24 people were shot dead in 2002, compared to 80 in 2003. Also,between 2002 and 2003, cases of defilement, aggravated assault, vehicle theft,burglary, robbery and general theft all rose rapidly. (The Monitor, 6 January 2004.)My own research of shopkeepers in Kampala showed that of 38 (22 men, 16 women)interviewed, 25 felt safe or very safe; seven felt nervous or anxious at times; six feltunsafe. Concerning victimisation rates, 28 had been a victim of theft in the last 12months or had known someone who had been; seven had been a victim of physicalassault in the last 12 months or had known someone who had been; four had been avictim of damage to property in the last 12 months or had known someone who had

10Interview, Officer in Charge, Mityana, Uganda Police, 31 March 2004; Interview, Community Liaison

Officer, Fort Portal, Uganda Police, 1 April 2004.

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been. These figures show there is no place for complacency that the local provision oflaw and order through LC 1s will always be adequate. Some inhabitants even inpoorer city areas have already decided that LC 1 night patrols are nor effective andhave secured the services of commercial guards.Are any forms of abuse associated with LC 1 policing? Some interviewees in

Kampala accused the LC 1 night patrols of accepting bribes to be absent from dutyand of not being effective. But the fact is there has been very little research in thisarea. As for the methods of holding LC policing accountable for violations of lawsand human rights, there is no special performance monitoring. In practice there isonly the oversight of the courts, and critical appraisal by civil rights organisationsand the media.Are LC 1s fulfilling the policing objectives for which they were originally created?

Or has the current context changed, in which case are they defining theirresponsibilities differently from the past? Certainly the context has changed over thelast 20 years. The cities have expanded, villages are less isolated, the economy hasgrown and diversified, and organised violent crime has emerged. In other words,policing has become more complex. This is reflected in the growing diversity andfragmentation of policing provision. A range of policing agencies now exists that werenot heard of 20 years ago. They offer localised protection of different levels of legality,effectiveness, availability, methods and services. Ugandans are now commonly facedin many situations with a choice as to what body they look to for protection and/orresponse to crime and disorder. As people move about their daily business, so theymay move from the sphere of one policing agency to which they would naturally lookfor protection, to another or be faced at times with a choice of agency to be made interms of personal experience, preference for mentality (surveillance or punishment),cost or communal status. The LC 1 may sort out the minor disturbance at the villagebar, but it is the vendors’ committee that mediates a settlement over theft in the marketfrom a fellow trader; the illegal vigilante group or legal militia that pursues the cattlerustlers; the marshal of the taxi owners and drivers association that handles the busstation pickpocket; the commercial security guard that protects the tea plantation orcity shop; the Uganda Police that are called if someone is shot; the Violent CrimeCrack Unit that responds to spates of armed robbery; and the Internal SecurityOrganisation that tackles the sub-county gang that are stealing cattle and vanillaseedlings. A situation exists in Uganda, therefore, as in most other African countries,of multi-choice policing (Baker, 2004). LC 1s are now only a part of a complex web ofoverlapping policing agencies. They are no longer seeking to fulfil single-handedly thepolicing objectives for which they were originally created. They have been forced todefine their responsibilities in terms of their relationship with these other agencies; tomake partnerships and to establish co-operation. Those new law and order structuresthat have its blessing, whether state initiated (such as Crime Prevention Panels) orcommercially initiated (such as market place policing) can expect to succeed. Even themilitary style Violent Crime Crack Unit and Internal Security Organisation nationalare dependent to a degree on LC 1 supply of intelligence.Yet despite these changes in the LC 1 policing role, there is still a legacy of the

bush war. It is a legacy that includes a deeply rooted local democracy and a fear of

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national insecurity recurring. The former has meant that the LC system has survivedthe increasing control from the centre. The LC 1, for all its inadequacies born ofsmallness, volunteerism and untrained personnel, has persisted. The fear of internalconflict returning, however, has led to a predilection by the State for militarysolutions to insecurity or the militarisation of national policing units, which havetaken over some of the LC 1 roles.Finally it should be noted that both the courts and the policing share a

maintenance problem. When a system relies heavily on volunteers there is always adanger of declining enthusiasm and commitment. The longer that system continues,the more pressing the question of sustainability without state resources. Putdifferently, once revolutionary fervour has waned and volunteerism subsides, howmuch will it cost to set up and sustain local participation in the justice and policingsystem? (Scharf, 2003).

6. Conclusion

The 20 years of experimenting with popular justice and policing at the local level inUganda have shown a steady dilution of popular control, though popular elementsstill remain. Perhaps inevitably, given the view that the state has of itself as being thesupreme authority, the state has increasingly sought to bring local initiative within aunified criminal justice system. Like so many structures ‘moulded during the courseof the struggle by the masses’, popular justice began to die the minute the revolutionseized control of the state. Apart from the army, the rest of the state institutions werenever dismantled and rebuilt in the image of the revolution. The courts, the judges,the magistrates and the Police remained intact, and have slowly reclaimed theground that they temporarily lost in the bush war.Yet despite the trend towards state takeover, something of popular justice lives on

in the LCs that contribute so much to the local ordering and protection of societyand the administration of justice. For all the failures of justice arising fromignorance, prejudice and corruption, many are grateful to have had a law and orderprovision that was based neither on the customary chiefship nor on the formal statesystem. The LC councillors may not be adequately accountable to the chiefmagistrates or the ruling party, but at least they are still an elected group of knownlocal people. The failure of supervision of LCs is of course another aspect of theweak state. States in Africa do not have the resources to penetrate society to thisdegree. In such circumstances local initiatives by volunteers are welcome and haveevidently reduced levels of mob justice to well below the African norm.There was always a contradiction in ‘popular justice’ between giving people

control and denying them certain of their deep held values such as the role and rightsof women. No formal rules that required 3 women on the LC executive and onewoman at every sitting of the court was ever going to eradicate discrimination easily.And such has been the case. Social engineering has a bad record.The future of popular justice in Uganda is surely for the LCs to be swallowed up in

the state system as the lower courts and lower grade police. Yet this need not be a total

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tragedy for those who held the vision of popular justice in the bush 20 years ago. Forall the failure at transformation, there is nevertheless in place in Uganda thefundamentals of a local law and order system. Uganda is not faced, as many Africancountries, with a local system of customary courts functioning outside of the state andwith different values and procedures that awaits incorporation into the state system.

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