Alternative Dispute Resolution And the Justice Arach Amoko Ruling

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On 17th June 2023, Uganda lost a great stateswoman Hon. Lady Justice Mary Stella Arach-Amoko, a Justice of the Supreme Court.

In accordance with the Administration of Judiciary Act, 2020, she was entitled to a state burial.

However, there was a dispute as to where she should be buried i.e. either at her ancestral home burial grounds in Nebbi or her husband’s ancestral burial grounds in Adjumani.

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For about 10 days, the said decision was pending determination by the High Court, Family Division which decision was eventually handed down on 27th June 2023.

The application was filed by the children of the deceased, her brother and sister against their stepfather and brother in law respectively vide High Court Miscellaneous Cause No. 41 of 2023: Annette Yossa, Komakech Emmanuel, Amony Jackie, Picho Godfrey, and Christine Onyok versus Ambassador Idule Amoko and Attorney General.

 

The Attorney General was added for having printed the burial program indicating Adjumani.

Coincidentally, in the very week the ruling was delivered, The First National High-Level Summit on Alternative Dispute Resolution (ADR) was conducted and organized by the Judiciary of the Republic of Uganda, Ministry of Justice and Constitutional Affairs, Pepperdine University and other partners and sponsors with the main attendees being senior judicial officers ranking from Registrars to Justices of the Supreme Court.

During the summit, one speaker rightly noted that parties to a dispute don’t really care for precedents but it is the lawyers and judicial officers that gain value from these precedents.

And true to his word, the ruling delivered by Hon. Justice Ketrah Kitariisibwa Katunguka [in Justice Arach’s case] indeed forms a very good precedent and jurisprudence on numerous matters in this country in relation to succession, cultural rights, and rights of women.

From the reading of the ruling, lawyers on both sides and ultimately the judge did an impressive and commendable job.

The lawyers each espoused brilliant and novel points of argument to support their clients’ cases and the Judge did a splendid job in her analysis and findings. In the end, the Applicants carried the day.

In brief, the Court made the following findings, that:

There is no express law governing burial disputes, especially for persons who die intestate; but certain laws including the Constitution grant powers to the Court in situations like the one at hand. The position of the law, therefore, is that the Court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition.

Similarly, the Judge invoked the wide and discretionary powers conferred upon the Court by the Succession Amendment Act, 2022 and thus impliedly, the Court can ‘lift the veil of succession’ to arrive at the best decision for the estate.

While observing that the late Justice expressed her wishes to the Applicants to be buried in Nebbi, the Court further stated that the deceased’s body is incapable of ownership by any person because it has no property value hence it does not fall within the pool of property of a deceased’s estate to which anyone can lay a claim.

The Court further observed that the law only recognizes the persons who are closest to the deceased to have the right to bury the deceased. Those persons have been identified as the spouse, children, parents, and siblings, in that order.

That said, the Court noted that just because one is a spouse, does not always guarantee him/her priority of treatment regarding matters of the deceased. Other circumstances may be invoked to alter the order of priority including the closeness or depth of relationship. Thus, in this particular case, the Court found in favor of the deceased’s children over the 1st Respondent who was the husband.

In this case, the deceased had disclosed to the Applicants her wishes to be buried in Nebbi and had also frequently visited her home there. Moreover, it was observed, that having been a princess her culture and customs demanded that she be buried at her ancestral home and not anywhere else.

While deciding whether the 1st Respondent’s custom should be observed, the Court defined the term custom as a practice that by its common adoption and long, unvarying habit has come to have the force of law.

A valid custom must be of immemorial antiquity, certain and reasonable, obligatory, and not repugnant to Statute Law, though it may derogate from the common law.

Finally, the Court also reaffirmed Articles 37 and 31 (1) of the Constitution of the Republic of Uganda in so far as they grant everyone the right to practice their culture and also the right to equality at marriage for both women and men.

In this regard, the Court found that the deceased did not by marriage waive or lose her right to belong to her culture. And thus, there was no bar to her being buried at her ancestral home rather than her husband’s ancestral grounds if she so desired.

Notwithstanding, the benefit that the precedent offers, we note that it is very unfortunate that the parties had to drag the hard-earned, scandal-free reputation of the late judge to such an extent.

For the record, the late judge had lived discreetly and out of the public eye in respect of her private affairs and she had also built a great brand and reputation as a senior judicial officer.

And so, it was rather disheartening and unfortunate to see that at her death the very people that truly loved and respected her could not in her honor amicably resolve the dispute regarding her place of burial.

We know from the reading of the ruling that the Court gave the parties an opportunity to mediate only for them to return and inform the court that the mediation had failed.

This left the Court with no option but to adjudicate on this matter. Regrettably, given the public nature of hearings by the Court, the ruling then became a public document which in effect robbed the parties of the benefit of confidentiality that is enjoyed under ADR mechanisms like mediation, conciliation, or arbitration.

By their very nature, ADR mechanisms besides being expeditious also confer and imply an oath of secrecy and confidentiality by all involved which has several benefits.

Moreover, from ADR, a duly enforceable order can be derived by the parties and enforced by the courts of law and/or other law enforcement agencies.

To make matters worse, given the adversarial nature of the usual judicial hearings, each party paints the best picture of who they are and the worst picture of the opponent. Unfortunately, in a sensitive family matter like the one at hand, both parties ended up putting out dirty linen against each other all in a bid to ensure a win-lose situation.

Sadly, facts the public did not need to know about the deceased inappropriately were put out for their consumption. Thankfully, the Judge appears to have been alert to this prejudice and in her findings, it is evident that she tried to steer far from non-essential facts.

The fact that mediation failed when availed as an option by the court perhaps speaks to our mindset as a community on the lack of appreciation of the value of ADR and perhaps the perceived value of the adversarial nature of the mainstream justice system.

Sometimes it is really an egos thing. Thinking that if you concede you are a loser and that if you fight you are more courageous. In the family context especially, ADR makes perfect sense because even after the dispute, all the parties need to reconcile and maintain a cordial relationship for the sake of the good of the family.

This is not to suggest that the mainstream judicial system is not a good and viable option. In certain cases, it may be the best option. There have been cases of abuse of the ADR forum by parties to a dispute to the prejudice of others and yet the majority of the ADR mechanisms exclude the right to appeal.

This has caused averseness and fear for ADR. We thus recognize and acknowledge that as a nation we have a lot to do to ensure that ADR yields the respect it deserves by creating the right structures, systems, processes, policies, and rules that ensure justice is achieved. Perhaps, this could have been the reason mediation failed in this case.

In conclusion, our hope and prayer are that the parties will look beyond this moment and in the loving memory and honor of their beloved mother, sister, wife, and relative, reconcile and reunite.

May the soul of Justice Arach Amoko rest in eternal peace. Amen.


Lawyer practicing with TARA Advocates. Areas of practice are: Commercial and Corporate law, Intellectual property law, Labour and employment law, Tax law, Criminal law and Legal advisory services.

Damalie Tibugwisa is a commercial law practitioner and is the founder and managing partner of TARA Advocates.


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