The Constitutional Court panel led by Justice Fredrick Egonda Ntende has unanimously ruled that the provision under the Judicature Small Claims Procedure Regulations of 2011 barring an advocate during the proceedings contravenes with the Constitutional right to fair hearing which also includes the right to legal representation.
Justice Egonda Ntende lead the panel that made the decision.
The constitutional court has quashed Rule 8(2) and 3 of the Judicature Small Claims Procedure Rules of 2011, which bars advocates from small claims proceedings. A panel of
five Constitutional court Judges led by Justice Fredrick Egonda Ntende has unanimously ruled that the provisions barring advocates from small claims
proceedings contravene the right to a fair hearing and legal representation.
The other judges are Elizabeth
Musoke, Cheborion Barishaki, Muzamiru Mutangula Kibeedi and Irene Mulyagonja. The judgement
stems from an application filed by Israel Ssejemba against the Attorney General in 2014. The Constitutional Court panel led by Justice Fredrick Egonda
Ntende has unanimously ruled that the provision under the Judicature Small
Claims Procedure Regulations of 2011 barring an advocate during the proceedings
contravenes with the Constitutional right to fair hearing which also includes
the right to legal representation.
to the court records, on October 16th, 2014, Ssejemba
received summons from Makindye’s Chief
Magistrates Court ordering him to pay Male
Kawuma Shillings 9.5
million. As a result, Ssejemba contacted his lawyers of Ekirapa and
Company Advocates to represent him.
However, the lawyers informed him that they could only advise him how to
proceed on the matter since Rule 8(2) and 3 of the Judicature Small Claims
Procedure Rules of 2011 bars
them from appearing in small claims matters, cases whose subject value doesn’t exceed Shillings 10 million.
Rule 8(2) and 3 of the Judicature Small Claims Procedure
Rules of 2011 provides that "A
party to an action shall appear in person before the court and shall not be
represented by an Advocate during the proceedings." Ssejemba explains upon further reading of the Small
Claims Procedure Rules and Guidelines, he
also discovered that the rules don’t provide
for the cross-examination of witnesses and that magistrate’s decision is final
and cannot be appealed.
Only the same magistrate can review the decision, which
Ssejemba said was illegal. As a such, Ssejemba
decided to challenge the provisions through his lawyers led by Obiro
Ekirapa on grounds that they were unconstitutional. However, State Attorney, Claire
Kukunda who represented the Attorney
General opposed the application, saying
that the Rules Committee chaired by the Chief Justice was aware
of the principle of fair hearing when it designed the Small Claims Procedure.
Kukunda noted that the principle of fair hearing
is not premised on legal representation but rather on partiality and fairness
of the court permitting the parties before it to adduce evidence unhindered by
technicalities. In their ruling, the judges noted that although the right
to appeal is not stated in the Small Claims Procedure Rules, it can be
provisions in the Constitution and the Magistrates Act, which provide for the right of appeal against
all decisions made by Magistrates.
In their judgement written by Cheborion
Barishaki, the justices agreed
that the silence on the right to appeal doesn't mean that the rules are
unconstitutional. They, however, ruled
that it is unconstitutional to bar cross-examination of witnesses in
small claims, saying it is
important in revealing the truth.
"Rule 24 provided no
justification for the bar on cross-examination of parties and witnesses. In a
trial without cross-examination, the guilt or innocence and the rights of a
party might be decided on a perjured, biased or erroneous testimony. Cross-examination helps to bring these ills to light", held the Judges.
The justices also found the provision
barring advocates from appearing in small claims procedures unconstitutional. "Therefore, the right to legal representation and cross-examination are at
the core of the right to a fair trial or hearing under article 28 of the
Constitution which is a non-derogable right under Article 44 of the
Constitution and the Judicature Small Claims Procedure Rules cannot diminish or
extinguish it”, reads the judgement.
Since the matters touch on
public interest, the Judges have ordered each party to bear its own costs.