Judges ask: are ‘fraudulent leakages’ responsible for all those missing court records?

12 November 2021 · Carmel Rickard

Three Ugandan judges have been wrestling with an increasingly common problem in the region: appeals that cannot be heard because vital court documents have gone missing. In this latest case the appeal judges said that as with other such cases it was not possible to know whether the documents had disappeared by way of ‘fraudulent leakages’, but that the appeal rights of the accused had been infringed as they had been waiting six years for the registrar to supply the record, without success. The only light at the end of the tunnel was the hope that with digitalisation of Ugandan court records, the ‘spate’ of lost court records would come to an end, said the judges. They also urged the Principal Judge to ensure that leaks were ‘sealed’.

Read judgment

The three judges hearing this appeal had a serious, but increasingly common, problem: key documents, including the trial court’s judgment, were missing from the record file. Counsel for the convicted men whose appeal was being considered made much of this fact. In fact, the legal team said the failure to produce the judgment and other relevant documents as part of the record made it ‘impossible’ to deal with the merits of the intended appeal.

Originally, four men were tried and convicted of murder and aggravated robbery in this case, but one has since died. They were all sentenced to 13 years and two months for one conviction and 15 years and two months for the other, the two terms to be served concurrently.

So, what should happen since the key documents were missing? Should there be a re-trial? Definitely not, argued counsel, who suggested that the court should add the five years of pre-trial remand to the six years and five months served after sentence, and conclude that it came to nearly 11 and a half years. The court should also decide that a re-trial would amount to an injustice, accept the appeal and then order the immediate release of the three appellants.

Vulnerable public

Counsel for the prosecution, however, said that it was the registrar’s duty to prepare the record of appeal within six weeks. Failure of the registrar to carry out this duty ‘should not be visited on the vulnerable public, most particularly the appellants’.

There was a record of the assessors’ opinion in the trial and the court could ‘reappraise the evidence, and draw inferences of fact and come to a finding,’ counsel urged.

The three appeal judges, Fredrick Egonda-Ntende, Catherin Bamugemereire and Christopher Madrama, said they had considered the time spent in prison by the three appellants and the years since they filed their notice of appeal in 2015. They ‘had never received the judgment even after several letters have been written from the Court of Appeal to the deputy registrar of the high court seeking the missing documents and that it is now a fact that these missing records cannot be retrieved.’

Injustice

In addition, it has been more than 11 years since the offences were committed and one of the accused had since died.

Given the passage of time and the multiple witnesses involved ‘a retrial is as imperilled as the reconstruction of the record of trial’. The judges noted, however, the strong view of counsel for the state, who ‘underscored the importance of safe custody of court records considering the harm a mistrial does to the victims of crime.’ Counsel had also ‘decried the constant loss of records which lead to injustice to all parties.’

The judges found that the appellants’ rights of appeal were ‘unjustifiably delayed by the justice system’ for six years. Thus, considering the time already served, the frustration caused by the delay, the court ordered the conviction and sentence to be set aside and all three to be set free unless held on other grounds.

‘Crisis’

The judges then addressed themselves to the problem of missing documents. But while they confined themselves to comments about the system in Uganda that allowed documents to ‘disappear’, it is in fact a problem across the continent.

Similar judgments on missing documents that should have formed part of an appeal record have recently been issued in Zimbabwe, South Africa and Kenya, for example. As long ago as 2013, a senior official in SA’s department of justice and constitutional development said missing records had been a ‘crisis’ for some time. In addition, a representative of the national prosecuting authority said that in SA, where an appeal succeeded because of an incomplete record, the state was empowered to reinstate prosecution.

The three Ugandan judges spoke of court records as ‘one of the most valuable assets’ in the dispensation of justice, but that this was not the first, nor, in all probability the last case involving serious allegations of missing records.

‘Fraudulent leakage’

‘It is possible that there is poor record-keeping in the registry,’ the court commented, and added, ‘fraudulent leakage in the system where records are intentionally lost in order to fail to the cause of justice … is a worrying prospect.’

‘It brings the integrity of the justice system under scrutiny.’

The court also noted that all the decisions cited by counsel in this case were precedents involving missing records and in most of which sentences were set aside as a direct consequence of missing court records

Digitalisation

‘Whatever the reason might be it is prudent that the Principal Judge reviews all these cases and makes inquiry into the record-keeping system to seal any possible leakages of such nature and to get justification on how these records go missing.’

However, the judges found one ‘positive note’ in the rather dismal situation: ‘it is hoped that the digitalization of all court documents (and) records will bring an end to the spate of lost court records.’

Carmel Rickard

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