ALTERNATIVE OR ‘‘APPROPRIATE’’ DISPUTE RESOLUTION.

The Judiciary is struggling to dispose of more than 40,000 backlog cases registered across Uganda. In October 2024, the Chief Justice, in his state of the judiciary report, indicated that there was a small reduction in the backlog, which has always been the biggest challenge in the judiciary.

The 2023/2024 report indicated that during the financial year, courts completed 239,431 cases out of 401,269. The caseload comprised 143,205 cases brought forward from that financial year.

There is continued persistence of the case backlog in the Judiciary of Uganda, even with the different constitutional provisions like Article 28(1)[1] which provides for a fair and speedy trial.

William Ewart Gladstone remarked that Justice delayed is justice denied[2]. This phrase emphasizes that if legal redress is not provided in a timely manner, it is effectively the same as having no remedy at all. This is also enshrined under Article 126(2) (b) of the constitution, which provides that justice should not be delayed.

We have seen frustration from different complainants who end up taking the law in their own hands and also others selling their properties in dispute at a cheaper price to do away with the stress which denies them of their fundamental human right of the right to property enshrined in the constitution.[3]

David Wangutusi in his paper[4], Case Flow Management and Scheduling Judiciary Work correctly observed that ‘’people come to court for a purpose, redress of which must come as fast as possible. He stresses that "quick justice is sweet justice’’

In society, the literacy levels are still high, and you cannot overlook ignorance of the law. Jospeh Mulenga in his paper ‘’ Towards strengthening judicial integrity in Uganda, new approaches’’[5] states that delay in disposal of cases in courts cause concern and calls for a plan of action for strengthening judicial integrity not only because of the principles that justice ought to be dispensed expeditiously but also because of the popular belief that delays are birth from corrupt intentions.

LITIGATION OR ALTERNATIVE JUSTICE SYSTEM.

When it comes to resolving conflicts between two or more parties, litigation has been the most popular approach for the previous century; however, this approach has met a number of shortcomings[6].

Article 126 of the Constitution sets out how the courts exercise judicial power.  It  provides  that  “  Judicial  power  is derived  from  the  people  and  shall  be  exercised  by  courts established under this Constitution, in  the name of the people and in conformity  with  law  and  with  the  values,  norms  and aspirations of the people.”

Article 126(1) of the constitution is to the effect that ‘’ Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people’’

Article 126(2)(d) of the constitution encourages the use of ADR mechanisms to resolve disputes, emphasising access to justice and reduced delays.

Access to justice is a fundamental right recognised in all our jurisdictions. It can be easily impeded by various factors such as case backlog, high cost of litigation and frequent adjournments.

One of the ways of enhancing justice is through the applicability of Alternative Dispute Resolution.

Alternative Dispute Resolution includes the dispute resolution process and techniques that act as a means for disagreeing parties to come to an agreement, short of litigation.

The Arbitration and Conciliation Act[7] section 3 provides for the application of Arbitration in the resolution of conflicts and as an alternative to justice.

Key Alternative Dispute Resolution Mechanisms.

ADR in Uganda encompasses several methods, including;

Mediation

Mediation is quite similar to Conciliation. It has been termed as “the interaction between two or more parties who may be disputants, negotiators, or interacting parties whose relationship could be improved by the mediator’s intervention.

Under various circumstances (determinants of mediation), the parties/disputants decide to seek the assistance of a third party, and this party decides whether to mediate. As the mediation gets underway, the third party selects from a number of available approaches and is influenced by various factors, such as environment, mediator’s training, disputant’s characteristics, and nature of their conflict.

Once applied, these approaches yield outcomes for the disputants, the mediator, and third parties (other than the mediator).”[8] In some respects, Mediation is referred to as Negotiation in the Alternative Dispute Resolution categories.

Rule 9 of the Judicature (Mediation) Rules, 2013[9] provides for who can act as a mediator.

A neutral third party facilitates dialogue to reach a mutually agreeable solution. It is widely used in commercial, family and land disputes, with mandatory mediation in civil cases.

Is Mediation binding?

The new Mediation rules have a strong positive impact on the practice of mediation as a form of dispute resolution because they add more weight to mediation agreements through regulation. They effectively answer the question as to whether mediation is binding.

Ordinarily, if an agreement is reached through mediation, then the terms settlement will be filed at the Court and bring the proceedings to a close. If no agreement is reached, then the Court will only be told that Mediation has been attempted and has failed 64.

This position is stipulated under Rule 20 of the Commercial Court Mediation Rules.

 It states –

 (1) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the parties and filed with the Registrar for endorsement as a consent judgment.

(2) If there is no agreement, the mediator shall refer the matter back to the Court.

As was stated by Lord Justice Brooke in Dunnet v Railtrack (2002)[10]

Parties that turn down a suggestion of ADR by the Court “may face uncomfortable consequences”.

 Jon Lang, a practising mediator, argues that it is human nature to reject any form of compulsion. He adds that:

“If it becomes regular practice to force reluctant parties to mediate, we may well end up with a process characterised by stage–managed and doomed mediations, rather than the high success rates we have seen over the last 10 years.’’[11]

Arbitration  

A binding process where an arbitrator makes a financial decision. The Centre for Arbitration and Dispute Resolution (CADER) oversees Arbitration, accredits arbitrators, and enforces awards.

However, to satisfy the court that the case before it should be referred to arbitration, certain conditions must be present as was spelt out by Tsekooko S.C.J in Shell (U) Ltd vs Agip (U) Ltd[12]

 These are:

         1. There is a valid agreement to have the dispute concerned settled by arbitration.

         2. Proceedings in Court have been commenced.

          3. The proceedings have been commenced by a party to the agreement against another party to the agreement.

         4. The proceedings are in respect of a dispute so agreed to be referred.

5. The application to stay is made by a party to the proceedings.

         6. The application is made after appearance by that party, and before he has delivered any pleadings or taken any other step in the proceedings.

         7. The party applying for stay was and is ready and willing to do all the things necessary for the proper conduct of the arbitration.

This means that where the case is for arbitration pursuant to an agreement to that effect, appointment of an arbitrator under section 11 of the Act follows as a mutual consideration and not for one party only to decide.

 As was stated by the CADER Executive Director in Uganda Posts Ltd v. R.4 International Ltd[13], “The appointment of an arbitrator is a mutual obligation which is imposed on all parties. A party unwittingly forfeits its statutory right when it fails to participate in the appointment of the arbitrator.

The duty would then fall upon the advocate to advise the client that the appointment of an arbitrator is a task, which ought to be performed by a party, since that is the essence of the undertaking, upon signing the arbitration clause.

Assuming the party is not well versed with arbitration, then the advocate would be the best placed person to advise the client on the unpropitious task to be performed.”

Basic steps in Arbitration

The Act provides guiding steps to be followed in arbitration proceedings:

a) A statement of Claim is filed at CADER by the Party initiating the arbitration proceedings detailing the brief facts pertaining to the dispute and the issues to be resolved, as well as the relief or remedy sought[14]. It should also include a nomination of an arbitrator.

 b) A copy of the filed Statement of Claim is then served upon the Respondent, who then responds with a statement of Defence within ample or reasonable time. Such time may be proposed by the Claimant, unless agreed otherwise[15].

 c) The Parties involved in the dispute appoint one or more arbitrators as may be agreed upon[16]. If they fail to agree on an arbitrator, the Centre for Arbitration and Dispute Resolution (CADER) provides one. The procedure for appointment of an Arbitrator is informal and agreed upon by the Parties[17].

 d) Each party is treated equally during arbitration proceedings with a reasonable opportunity to present their case.

 e) If there is a default by any of the parties in fulfilling their obligation in the course of or prior to the start of the proceedings, the arbitral tribunal shall act accordingly in either terminating the proceedings or making an award with the evidence before it.

 f) The Arbitral tribunal decides the dispute according to the rules of law chosen by the parties.

g) Proceedings during arbitration may either involve hearing oral arguments or filing written submissions.

 h) The tribunal is mandated to make its award in writing within two months after having been called on to act, after which, the proceedings are terminated.

 i) The award is recognised as binding under the Act 39 and can be enforced as if it were a decree of the Court[18].

Conciliation

Similar to mediation, but the conciliator may propose solutions. It is regulated under the Arbitration and Conciliation Act.

This is another form of Alternative Dispute Resolution provided for under the Arbitration and Conciliation Act. A Conciliator aims to assist the parties to a dispute to find a solution, but has no power to enforce it.

There is inadequate documentation and study in the practice of Conciliation as an ADR tool, which is most likely because of the private nature in which it is conducted. The parties to the dispute arrive at their solution independently and impartially as stipulated by Section 53 of the Act.

 The Act provides the basis for the Conciliator to play his role. It states that:

“ The Conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the  concerned and the circumstances surrounding the dispute, including any previous business practices between the parties[19]

It therefore follows that, save for the Conciliator conducting the proceedings of the conciliation in the best manner that he deems fit[20] the whole focus of the proceedings rests on the interests of the parties; their common business practices (usages of trade), if any; and the circumstances surrounding the dispute.

Why Alternative Dispute Resolution.

Alternative Dispute Resolution offers numerous advantages in Uganda’s context, making it an effective tool for resolving disputes across commercial, family, land and other domains. Below is a detailed breakdown of the key benefits of ADR, tailored to Uganda’s legal, cultural and socio-economic environment:

1) Cost-Effectiveness

Lower Financial Burden: ADR, particularly mediation and negotiation, significantly reduces costs compared to litigation. Court fees, prolonged legal representation, and related expenses are minimized, making justice more accessible, especially for low-income individuals and small businesses.

Affordable for Marginalised Groups:

ADR aligns with Article 126(2)(e) of the constitution, which emphasises accessible justice. For example, customary ADR mechanisms in Northern Uganda resolve land disputes at minimal or no cost, benefiting vulnerable communities like women and youth.

2) Time Efficiency

Faster Resolution: ADR processes like mediation and arbitration are quicker than litigation, which takes years due to court backlog.  For example, mandatory under the Judicature (Mediation) Rules (2013) resolves disputes within weeks or months.

3) Confidentiality

Cultural sensitivity: In Uganda, where traditional dispute resolution is common, confidentiality supports community-based reconciliation, maintaining social harmony without public exposure, as seen in customary land disputes in Northern Uganda

4) International applicability of arbitration awards.

The Arbitration and Conciliation Act gives effect to the New York Convention on the Recognition and Enforcement of Arbitral Awards (referred to as the 41 Section 36 13 New York Convention Award)42.

In effect, therefore, the Arbitral Awards granted in Uganda can be enforced in any Country which is a party to the Convention adopted by the United Nations Conference on International Commercial Arbitration on the 10th of June, 1958. On the other hand, Court judgments can only be enforced outside of Uganda with Countries that have a standing reciprocal arrangement in the enforcement of Judgments.

Recommendations for Enhancing ADR

a) Expand the scope of ADR

5)  Include Additional Dispute Types: Extend mandatory ADR to personal injury claims, employment disputes and corporate governance conflicts, which are currently underrepresented in ADR frameworks. This aligns with the judiciary’s goal of easing case backlog

6) Integrate ADR in Specialised Sectors: Encourage ADR use in emerging sectors like intellectual property, environmental disputes, and consumer protection, where litigation is often complex and costly. For instance, arbitration could streamline disputes in Uganda’s growing tech and creative industry.

b) Mandate ADR for All Civil Litigation.

Pre-Litigation Requirement: Expand the Judicature (Mediation) Rules (2013) to make ADR, particularly mediation, a mandatory first step for all civil cases across all court levels. This would reduce the backlog of 143,205 cases of 2023/2024.

c)Increase Public Awareness and Education.

Community Outreach Programs: Launch nationwide campaigns, led by the judiciary and the Arbitration and Mediation Society of Uganda (AMSU), to educate people on the different mechanisms to access justice.

School and Community Training: Integrate ADR principles into school curricula and community workshops, emphasizing their cultural alignment with Uganda’s traditional dispute resolution practices to build trust and adoption. For instance, the upcoming training by the Arbitration and Mediation Society of Uganda on Arbitration and Mediation is going to happen in November 2025

Conclusion.

ADR in Uganda is a well-established mechanism, deeply integrated into the legal system through constitutional, statutory and institutional support. It has proven its effectiveness in reducing the caseload in the county. While challenges like limited awareness and funding persist, the judiciary has a role to play in enhancing the application of ADR in Uganda.

 By Kakooza Derrick A Member of the Youth Alternative Dispute Resolution forum

[1] 1995 Constitution as amended.

[2] Speech on March 16,1868

[3] Article 26 of the 1995 constitution as amended

[4] Wangutusi, D. (2003, July). Case Flow Management and Scheduling Judiciary Work. Paper Presented during an induction course for Magistrates Grade one at the Uganda Management Institute Kampala

[5] 10Mulenga, J. (2004 September). Paper Presented at the Sixth Judicial Officer’s Forum organized by the Foundation for Human Rights’ Initiative at Lake View Regency Hotel Mbarara

[6] Brand, J., Steadman, F., & Todd, C. (2016). Commercial mediation. A user's guide to courtreferred and voluntary mediation in South Africa. Retrieved https://www.saflii.org/za/journals/DEREB US/2013/89.pdf

[7] Cap 5

[8] 6 Wall, et al., 2001:370 in R. Ramirez: A conceptual map of land conflict management: Organizing the parts of two puzzles (March 2002) in http://www.fao.org/sd/2002/IN0301a3_en.htm , visited February 26, 2007.

[9] Statutory instrument 10 of 2010

[10]5 Cited by Jon Lang: Should warring Parties be forced to mediate?- The Lawyer, 23 February 2004 – see http.//www.jonlang.com/pdf/sweet-talk.pdf accessed 20th November 2009 

[11] ibid

[12] Supreme Court Civil Appeal No. 49 of 1995(Unreported)

[13] CAD/ARB/NO. 11 of 2009

[14] Sec. 23

[15] Sec. 21

[16] 1 Sec. 10

[17] Sec. 11(2)

[18]Sec. 36. The First Schedule to the Act also provides for procedure on enforcement of an arbitration award.

[19] Sec 53(2)

[20] Sec 53(3)