THE RELEVANCE OF FORMAL JUSTICE PROCESS IN CONFLICT SETTLEMENT 1

The relevance of Formal justice process to the programme of peace and conflict studies, and
indigenous approaches in or to conflict management

Moses Obete
2019/HD03/30041U
(MA Peace and Conflict Studies, 2019-2021)
Department of Religious and Peace Studies
School of Liberal and Performing Arts
College of Humanities and Social Sciences
Makerere University

Dr Musana Paddy
(Course Instructor)

December 7, 2020

The purpose of this paper is to draw comparison between formal justice procedures and the programs of
peace and conflict studies particularly indigenous approaches to conflict management
THE RELEVANCE OF FORMAL JUSTICE PROCESS IN CONFLICT SETTLEMENT 2

Introduction

There has been a debate on the relevance of the western type justice system in conflict settlement
especially when it involves a criminal offence against another. In the formal justice system (or the
western Justice system), the state through the state attorney takes up such a case and the victims
become merely the witnesses. The assumption is that the state is the guardian of her citizens and it is
her responsibility to defend them against any harm. Despite this position, there have been questions as
to whether such systems are well equipped to provide justice to the victims.

Questions which have often been asked includes the question of justice for who and by who? In this
paper, I will try to examine the relevance of the formal court system in conflict management using
criminal court cases observed on 22 June 2020 and another one on 2 December 2020 at Grade One
Magistrate Court, Jinja. I will also attempt to compare the formal justice systems to that of indigenous
approaches to conflict management and in the process answer the question of justice for who and by
who. I will then draw a conclusion showing the extent to which justice can or cannot be served using
formal court system unless there is truth, reconciliation and reparation of victims.

Results/Findings
I observed three criminal cases which were at different levels of trial; mentioning of the case and plea
taking, final hearing, and sentencing. During these sessions I noted that criminal procedure in Uganda
begins with either arrest followed by investigation or investigations followed by the arrest of the
suspect. After the arrest the accused’s file is presented to the Resident State Attorney for sanctioning.
When the file is sanctioned, the accused is arraigned before court and the state attorney or prosecutor
pursues the case on behalf of the victim and the state. What follows are several legal proceedings
before court which ends in the accused either being found not guilty or guilty. In the latter case, and
unless he appeals against the ruling, the accused is handed one or more of the various forms of
punishments including a caution, fine, community service, imprisonment, to life imprisonment, and
death.1

From the above three cases partially observed, I noted that: (1) the accused is forcefully taken to court;
(2) the justice procedure is adversarial; (3) the process is based on the presumption of innocence; (4)
1
Death penalty was out lawed in January 2009 in the case of Susan Kigula & 416 Others v Attorney General (Constitutional
Petition No. 6 of 2003) [2005] UGCC 8 (10 June 2005)
THE RELEVANCE OF FORMAL JUSTICE PROCESS IN CONFLICT SETTLEMENT 3

the burden of proof of guilt lies with prosecution; (5) degree of proof is beyond reasonable doubt; and
(6) criminal justice procedure is punitive and does not take care of the victim’s needs. I will discuss
each of these in some details.

Adversarial nature of criminal proceedings. In the formal justice system, the accused person and or
his/her legal representative is pitted against the prosecution team and the victim before a judge or jury,
who attempt to determine the truth and pass judgment. While witness testimonies begin with the
witness swearing or affirming using “Holy books”, the legal gymnastics still leads to a wrong
judgement as was reported in a study by Irazola, Williamson, Stricker, & Niedzwiecki, (2013).

Presumption of innocence. Under the law in Uganda, an accused person is presumed to

be innocent until proved guilty by a competent court and or until such accused pleads guilty to the
charge voluntarily. This presumption is enshrined in Article 28 (3) (a) of the constitution. This also
means that even if a person is found red-handed committing an offense, he will still be presumed
innocent until proved guilty by court.

Proof of guilt. In all criminal cases, the prosecution has the burden of proving the case against the

accused beyond reasonable doubt. The accused does not need to prove that they are innocent.2

Criminal Justice is punitive. It is based on the principle of retributive justice. The principle in
retributive justice is that if a person has done wrong knowingly, he/she should be punished for it (Joyce
Nalunga Birimumaaso, 2018).

Discussion, Conclusion and Recommendation

Discussions
From the above findings, a line could be drawn between the formal justice procedure and the traditional
or indigenous approaches to peace. The indigenous peacebuilding are approaches of peacebuilding
inherent in a given society following years of tradition aimed at restoring order and relationship during
or after conflicts (Omona, 2020). Indigenous approaches to peacebuilding are directed toward building
sustainable, durable, and peaceful coexistence within communities and among individuals (Omona
2015, 2020). Its main objective is restorative justice which strives on the principles of forgiveness and
2
See the case of Ssekitoleko v. Uganda [1967] EA 531).
THE RELEVANCE OF FORMAL JUSTICE PROCESS IN CONFLICT SETTLEMENT 4

reconciliation for peaceful coexistence (Murithi, 2006). To draw a clear line between the two
approaches to peacebuilding I will highlight some of the commonest principles of indigenous peace
building, explaining the difference between the two and the extent to which each of them repairs the
harm caused by a wrong.

View of crime. Restorative justice view crime as a violation of relationships. In their view crime injures
the both the victims and the community (Zehr & Mika, 1998). This approach recognizes that the
primary victims are those directly affected by the offense but also acknowledges that others, such as
family members of victims and offenders, witnesses and members of the affected community, are also
victims. This, therefore, requires that the relationships affected (and reflected) by the crime must be
addressed. Addressing injuries against the primary victim and the secondary victims is key to restoring
relationships and speeding up the healing process. Since the criminal justice system does not take care
of the victims’ needs it falls short of this healing process.

Key stakeholders in justice. In the indigenous approaches to peace, the victims, offenders and the
affected communities are the key stakeholders in justice. The indigenous process maximizes the input
and participation of all the parties in the search for restoration, healing, responsibility and prevention.
In the criminal justice system, the state takes up the case on behalf of the victims, therefore, the victims
and affected community are left out. Their feelings, opinions and wishes matter the least. Lack of
involvement by the victims and the community results into poor healing process. This may lead to
further conflict when the accused person completes his/her sentence and returns to the community.
Restorative justice offers opportunity for all the affected parties to fully participate in the justice
processes. It is a justice process that belongs in the community.

Violations Create Obligations and Liabilities. The offender's obligations are to make things right as
much as possible. His/her primary obligation is the victims whom he/she must restore as much as
possible. The process empowers the offender to voluntarily take responsibility for their actions.
Compared to the criminal justice process in which the offender is forced to court, voluntary actions
allow the offender to own up to his/her actions. This can allow for forgiveness and reconciliation which
heal relationship.
THE RELEVANCE OF FORMAL JUSTICE PROCESS IN CONFLICT SETTLEMENT 5

The community's obligations are to victims and to offenders and for the general welfare of its members.
The community’s responsibilities include supporting and helping victims of crime to meet their needs,
bearing the welfare of its members and the social conditions and relationships which promote
community peace, supporting efforts to integrate offenders into the community, and to ensure
opportunities for offenders to make amends. The inclusion of the community in the justice process
helps eliminate negative tendencies which would otherwise jeopardize reconciliation and the
reintegration process.

Truth telling. Although in the formal court procedure the witnesses use the holy books to swear before
giving their testimonies, the values there do not include the truth. The judgement is not based on
whether the testimonies were truthful but on logic and validity of arguments. Truth telling is one of the
values of restorative justice. According to Millar (2011), acknowledgement of the truth provides justice
to the victims and survivors, while restoring the larger community. If this assertion is true then formal
justice system does not provide justice for the victim and the community.

Healing and correction of the wrong. While formal justice system seeks to punish the offender by
extracting them from the community, restorative justice seeks to heal and put right the wrongs.
According to Zehr and Mika (1998), the needs of victims are the starting points for justice. In their
view, this provides a framework that promotes recovery and healing through the offender’s direct and
voluntary actions to repair the harm. The process also addresses the offender’s needs and competencies
and seeks to heal and restore them into the community. This heals the broken relationships.

Conclusion
Formal justice system entails the use of courts and tribunals in settling disputes. It differs from the
indigenous approaches to peace through the procedures and its principles. The formal justice system
relies on retributive justice which seeks to punish an offender for the wrongdoing. The indigenous
approaches to conflict management involves the use of restorative justice principles. It concerns itself
with repairing the harm created as much as possible. All stakeholders, the victims, offender and the
community are fully involved and the decision is arrived at by contentious. This approach
acknowledges that crime harms relationships and for lasting peace, this should be amended. As
opposed to the formal justice system, traditional approaches can therefore be said to deliver justice for
THE RELEVANCE OF FORMAL JUSTICE PROCESS IN CONFLICT SETTLEMENT 6

the primary victims and the community and as well reintegrate the offender into the community
through forgiveness and reconciliation.
Recommendation

For effective justice and community reintegration of offenders, the judiciary should think of integrating
restorative approaches in the legal system.

References
Irazola, S., Williamson, E., Stricker, J., & Niedzwiecki, E. (2013). Study of Victim Experiences of
Wrongful Conviction. ICF Incorporated. Available at
https://www.ncjrs.gov/pdffiles1/nij/grants/244084.pdf Accessed December 3, 2020.

Joyce Nalunga Birimumaaso. The principles and purposes of sentencing. A presentation to the 20th
Annual Judge Conference held on 22 January 2018. Stable URL:
http://judiciary.go.ug/files/downloads/The%20%20Principles%20and%20Purposes%20of
%20Sentencing%20a%20paper%20by%20Uganda%20Law%20Society%20at%20the%2020th
%20Annual%20Judges%20Conference.pdf

Millar, G. (2011). Local Evaluations of Justice through Truth Telling in Sierra Leone: Postwar Needs
and Transitional Justice. Human Rights Rev. Vol. 12, 515–535. https://doi.org/10.1007/s12142-
011-0195-x

Omona, D. A. (2020). Indigenous peacebuilding. Uganda Christian University, Mukono, Uganda.

Published online by ResearchGate. Stable URL:
https://www.researchgate.net/publication/341150942_I_Indigenous_Peacebuilding

Tim Murithi, (2006). African Approaches to Building Peace and Social Solidarity. African Journal of
Conflict Resolution (AJCR) 2006/2 ACCORD. Available at: https://www.accord.org.za/ajcr-
issues/african-approaches-to-building-peace-and-social-solidarity/
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Zehr H., and Mika, H. (1998). Fundamental Concepts in Restorative Justice. Contemporary Justice
Review. Vol. 1. 47-55.