Bugisu to recognize outgoing Chief Justice Owiny Dollo for championing alternative justice systems
I am pleased to report that the Minister acted swiftly, and the leadership dispute was resolved in August 2023.
Op-Ed: Lawyers must always make their clients aware of the necessity of resolving disputes through Alternative Dispute Resolution (ADR) mechanisms.
Alternative dispute resolution also commonly referred to as the alternative justice system is as old as the principles of law themselves.
Centuries ago, the Chinese viewed ADR as superior to litigation, while in Africa, many societies relied on traditional “tribal moots” to resolve community disputes long before the imposition of colonial rule.
When the Bugisu Cultural Institution faced leadership wrangles following the election of Umukuka III, Jude Mike Mudoma including disputes that arose during his reign I personally made a case before the outgoing Chief Justice of Uganda, His Lordship Owiny Dollo, and his team.
I informed them that the Bamasaaba community was desirous of resolving its cultural leadership challenges through mediation. The Judiciary fully agreed with this approach.
Available statistics indicate that mediation has a success rate of between 80 and 85 percent. In recognition of this success, legislation in Uganda is gradually being amended to incorporate mediation and other ADR mechanisms into dispute resolution processes.
It is a long-held principle of law that issues of cultural leadership should be handled through state-recognized legal frameworks, as they are inherently reconciliatory in nature.
An aggrieved petitioner in cultural matters cannot proceed directly to adversarial litigation without first exhausting the mechanisms provided for under the law. Had this principle not been respected, many such matters would have been dismissed by competent courts centuries ago.
Mediation, according to both local and international sources, refers to the resolution of disputes outside the adversarial court system. In simple terms, it involves resolving conflicts through mediation, arbitration, conciliation, or similar non-litigious means.
In Uganda, mediation is increasingly gaining traction as a localized and community-friendly method of dispute resolution. It has gained statutory prominence under Article 126(2)(e) of the Constitution of Uganda, which encourages reconciliation in society.
Other key legal frameworks include the Conciliation and Arbitration Act, Cap 5, as well as provisions under the Civil Procedure Rules that promote mediation, conferencing, and plea bargaining particularly in criminal cases.
In Bugisu, when we were confronted with the cultural leadership crisis, we promptly engaged the Government for guidance. Our first point of contact was the Minister of Gender, Labour and Social Development, whom we requested to invoke Article 246(2) of the Constitution and the Cultural Leaders Act (CLA) 2011 to guide the community through the impasse that was tearing us apart. I am pleased to report that the Minister acted swiftly, and the leadership dispute was resolved in August 2023.
It is also a fundamental principle of mediative law that once a procedure has been established for resolving disputes, disputing parties must strictly follow it and not deviate from the statutorily prescribed mechanisms.
The outgoing Chief Justice of Uganda, His Lordship Owiny Dollo, together with members of the Judiciary ncluding those aspiring to succeed him played an instrumental role in helping Bugisu resolve its cultural leadership disputes.
At one notable alternative justice system workshop held in Kampala, the Chief Justice emphasized the importance of resolving disputes through African and clan-based structures. He reminded participants that Africans had effective systems of justice long before the arrival of colonial rule in Uganda.
Together with Judiciary Technical Assistant Prof. Khaukha, the outgoing Chief Justice has travelled across the globe including Zambia, Namibia, and the United States to study successful ADR models and recommend their adoption in Uganda. These efforts were aimed at ensuring that ADR is not overlooked, regardless of one’s status or position in society.
Prominent scholars such as Professor Frank Sander of Harvard Law School have long argued that ADR plays a critical role in reducing court backlogs a view I have no reason to dispute. In the 1970s, Prof. Sander proposed the famous “multi-door courthouse” concept, where courts would direct cases to appropriate dispute resolution mechanisms, including mediation, before litigation.
In Uganda, these principles are already being implemented. For instance, in civil cases, court records must show that attempts at ADR were made and failed before litigation can proceed.
The benefits of mediation such as reconciliation, party participation, cost-effectiveness, and timely resolution should be loudly championed by all Ugandan media platforms. Any lawyer who refuses to recommend ADR and instead insists on litigation solely to fleece clients should be disregarded.
The alternative justice system is free and accessible. It can be practiced by experienced individuals ranging from cultural leaders to clan heads. For his tireless efforts in promoting peaceful conflict resolution through ADR, I salute the outgoing Chief Justice of Uganda, His Lordship Owiny Dollo. He truly deserves Bugisu’s highest honors.
Steven Masiga is the Spokesperson of the Bugisu Cultural Institution and a Master’s student of Law.
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