Why visiting the locus should not become compulsory in judicial proceedings in Uganda
Uganda is grappling with high case blacklog, a litigious society and a disproportionate high number of land disputes. The judiciary is struggling with lack of enough manpower, unmotivated and poorly paid judicial officers and underfunding. However there is a proposal to make visiting the locus a compulsory requirement during litigation. The judiciary that lacks sufficient funds to try capital offenders to the point that some remain on remand without trial for more than a decade wants to create a new unaffordable expense. The judiciary can barely afford facilitating locus visit while they are at the discretion of court but some deluded person wants to make visiting the locus mandatory. So if judicial officers have to wait for as many as 4 years to receive locus funds while locus visits are discretionary, it means that when they are mandatory judicial officers will in some instances wait for a decade to receive funds for locus visit. I can not exaggerate how idiotic it is to impose a legal requirement that is unnecessary and unaffordable yet there is no mischief to solve.
What is prompting this idiotic proposal is a few cases where unscrupulous Land owners fail to disclose occupants of land in their litigation and use the resultant court order against the occupants who were never parties to the proceedings. This sort of fraud could have been discovered if court had visited locus but it shouldn’t hold other litigants hostage by requiring that court must visit locus in every land dispute. Individuals have a right to a fair and speedy trial but where litigants have to spend two decades litigating the ownership of their land then this right is violated. Imagine some unscrupulous individual unlawfully evicting you from your land and you have to spend two decades fighting him or her. In Uganda this is the reality of many litigants who spend decades litigating land disputes in Ugandan courts.
Even if the judiciary could afford to facilitate a locus visit in every land dispute, it would still be unworkable to visit locus in every land dispute. A judicial officers has 254 working days in one year excluding weekends and public holidays. Assuming that a judicial officers hears 100 land disputes every year, it means that he or she has to reserve 100 days for locus visits leaving 154 days to hear cases. A judicial officer must hear criminal cases, civil cases and land disputes. A judicial must write judgments and rulings, execute his or orders and attend to other administrate tasks. In the Judiciary of Uganda, Magistrates have a target of atleast 300 cases concluded per year and yet a judicial officer would have 154 working days to hear these cases and complete them. Unless the Judiciary employs machines, it’s not possible to hear and dispose of 300 cases on top of other duties and responsibilities of a Magistrate in 154 days.
The policy makers must understand that a substantial number of land disputes are not decided on their merits but on the basis of legal technicalities. The most common technical on which land disputes are decided is the statutory limitations period under the Limitations Act. This statute gives a land owner twelve years to file a suit to recover land. Many disputes are decided on the basis of this requirement which bars suits brought more than 12 years after the trespasser first entered the land. So if you impose a mandatory requirement to visit the suit land before a judicial officer decides a land dispute then how to do you characterise such cases that are decided on the basis of the law. It is idiotic to visit the suit land when you are not going to decide the case on the basis of what is or is not on the land. What about a suit that is dismissed before hearing for reasons such as lack of standing or limitation or res judicata, must the judicial officer visit the suit land before making his or her decision.
There are less onerous alternatives to making locus visit compulsory in every land dispute such as Registration of occupants on the land title. This would make it difficult for a litigants to hide occupants since their interests are registered on their reversionary. It’s not possible to eliminate fraud and abuse of court courts entirely regardless of whether judicial officers visit locus or not. Therefore, the state should instead of making locus visits compulsory put in place high penalties for abuse including high minimum fines and high minimum custodial sentences such as 20 years imprisonment so as to deter fraud and abuse of court orders.
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