A Step-By-Step Guide On Land Dispute Resolution Mechanisms .
A Step-By-Step Guide on Land Dispute Resolution Mechanismsin Acholi- Northern UgandaFunded by:i
Table of ContentsACKNOWLEDGEMENTSIIIACKNOWLEDGEMENT OF AUTHORIVFOREWORDVNOTE TO USERSVIACRONYMSVIIKEY TERMSVIIIINTRODUCTION1CHAPTER ONE: PORO LOK2CHAPTER TWO: RIYO TAL5CHAPTER THREE: NEGOTIATION11CHAPTER FOUR: MEDIATION16CHAPTER FIVE: CONCILIATION21CHAPTER SIX:25ARBITRATIONCHAPTER SEVEN: ADJUDICATION OR LITIGATION30A) CIVIL LITIGATION30B) CRIMINAL LITIGATION41REFERENCES45ii
AcknowledgementsWe would like to express our gratitude to the individuals, organisations and institutionsthat supported, encouraged and assisted us during the process of developing, drafting andvalidating this Step by Step Guide. Without their invaluable support and contributions,the development of this guide would not have been made possible. We sincerely thankthem!In a special way, the following deserve special mention. The team from Trócaire throughMs Susan Toolit Alobo provided valuable advice, comments and support during theentire process. James Latigo provided priceless comments and Professor RonaldAtkinson shaped the arrangement of the chapters for this Guide.The Technical Committee of the JASLF on Land, headed by Rev. Fr. Dr. JosephOkumu provided great encouragement to us from the beginning to the end of thisconsultancy. The commitment, dedication and enthusiasm with which Dr. JosephOkumu followed the process was a great encouragement and inspiration to the team.Mr. Walter Okidi Ladwar, an advocate based in Gulu and Francis Odongyoo, theExecutive Director (ED) of Human Rights Focus (HURIFO) provided valuableinformation for this Guide.I would like to mention the Rwodi in Agago district who congregate every 6th and 27th dayof the month to conduct riyo tal in Lukole, Agago District. In a special, Rwot Lakidi ofPaimol, who heads the team.Several people provided generous and immeasurable contributions in different ways andwe would like to mention Mzee Odong Oyango, Bishop MacBaker Ochola, Hon. JusticeGaldino, Okello Moro, Dr. Patrick Otim, Dr. Kaddu Mukasa and many others that wemay not mention.As a team we are indebted to you!iii
Acknowledgement of AuthorThis report was authored by OJOK ADVOCATES (Julius Ojok) as part of the overallresearch project on customary land practices in Acholi.Physical AddressOJOK ADVOCATESMukwasi HousePlot 39A, Lumumba AvenueKampala Ugandaiv
ForewordThe civil war between the Government of Uganda, and the Lord’s Resistance Army(LRA), which lasted for several decades, resulted into unparalleled violence,displacement and encampment of thousands of people in northern Uganda. The effectsof this violence on the people of the Acholi sub-region cannot be underrated. Inparticular, putting people into Internally Displaced People’s (IDP) camps created thebiggest problem in the region: it eroded the local leadership structures and authority aswell as traditional norms and values, which in turn led to numerous problems, includingland disputes. It also robbed the formal justice system of its role of effective disputeresolution, as many people lost trust in the justice system.These land disputes and the weakening of land dispute resolution mechanisms,institutions and organisations have adversely affected the social, economic and politicallives of the people of northern Ugandan in general and the Acholi sub-region inparticular. Most of the elders who commanded moral authority and knew how to resolvedisputes have long died.This guide is therefore an effort to document the various but relevant processes andprocedures of land dispute resolution mechanisms appropriate and applicable within theAcholi sub region. The Guide covers land dispute resolution mechanisms, such aslitigation, arbitration, conciliation and mediation. Traditional Acholi land disputeresolution mechanisms like poor lok and riyo tal are also included in the Guide.This Guide is intended to help inform the choice of forum and mechanism for landdispute resolution in Acholi sub region by contending parties. At the same time, it isintended to help guide those who are engaged in dispute resolutions. This Guide shouldalso help disputing parties choose cheaper, quicker, effective and accessible disputeresolution mechanism and forum.Finally, this Guide has been written in a manner that is easy to read and understand. It isa piece of work which if used effectively will go a long way in handling the numerous anddiverse land disputes in Acholi sub region.v
Note to UsersIt is envisaged that this Guide will be used by everybody who is interested in land disputeresolution especially in Acholi sub region. This Guide is intended to provide informationon the appropriate and relevant dispute resolution mechanisms. It does not cover all landdispute resolution mechanisms, mechanisms such as rent a judge or mini trial are notconsidered in this Guide.This is just a Guide. It is a basic pointer to what may be done. It is not intended to offeror substitute legal advice and counselling that users of this Guide should seek fromappropriate and qualified personnel and organisations. Users of this Guide areencouraged to seek advice and counselling from qualified persons in the area of land lawand dispute resolution. This Guide is intended to be used by anyone. It is intended foruse by those trained and not trained in land law and dispute resolution.vi
ACRONYMSADRDPPJASLFLCWSDviiAlternative Dispute ResolutionDirector of Public ProsecutionsJoint Acholi Sub Regional Leaders ForumLocal CouncilWritten Statement of Defence
KEY TERMSAccused Person:A person who has been charged (taken to court) in courtfor committing an offence specified in the law. This isonly in respect of criminal law not civil law.Appeal:A formal step or process taken by a person who is notsatisfied with a decision of a lower dispute resolutionbody like court to a higher body with a view of changingthe position decided by the lower body.Arbitral Agreement:A formal undertaking, agreement or contract which mustbe put in writing by the parties to the undertaking,agreement or contract that any dispute arising betweenthem relating to the undertaking, agreement or contractwill be referred to arbitration.Arbitral Award:A formal decision or judgment of an Arbitrator inprocess of arbitration. It is written and signed byArbitrator. It contains the facts of the case or whatparties have stated, the law and the reason whyarbitrator decided the way he or she did.Arbitral TribunalA team of arbitrators conducting a particular arbitration.Charge:This is the summary of the facts and the statement of theoffence that has been preferred against an accused person.Simply put, it is information to the accused person of whatthe person did and the law under which the person hasbeen brought to call to court. It mentions the facts, offenceand the section of the law.Charge sheet:This is a document signed by the person preferring acharge usually a police officer and also signed by amagistrate.Civil Litigation:This is the determination of the rights of the parties bycourt in a case that does not involve criminal matters.Claim:A formal written document by a complainant or a claimantstating the facts and reasons why the Arbitrator shouldaward the reliefs or remedies sought by the Complainantor Claimant.Claimant:The person asking an Arbitrator to award him or hercertain reliefs or remedies due to the wrongful action ofthe person claimed from. The person presents a claim.Complainant:A person lodging a complaint especially in a mediation orconciliation.viiithethethethe
Conciliation:A dispute resolution mechanism where the parties resolvetheir dispute, facilitated by a Conciliator who plays a moreproactive role than a mediator but does not have thepowers to make decisions for or on behalf of the parties.Conciliator:A person who conducts a conciliation.Consent Judgment:An agreement, which is reached by the parties to adispute after a case was already filed in court beforejudgement is passed. It must be endorsed by a judicialofficer.Court Connected Mediation: Mediation that is conducted after the case has been filedin court. The dispute is referred for mediation and ajudicial officer will only handle the case when mediationhas failed.Convict:A person who has undergone a criminal trial and hasbeen found guilty of committing the crime he or she wascharged with.Crime:An act that is forbidden by the criminal law.Criminal Litigation:This is a court process to determine the innocence orguilt of an accused person.Defendant:The one who files a Defence or an answer refuting theclaim brought against him or her by the Plaintiff.Judgment:Formal decision of a judicial officer. It contains the factsof the case, the law and the reason why the JudicialOfficer decided the way he or she did.First Meeting:A meeting that is held before an arbitration iscommenced to agree on administrative issues or theconduct of the arbitration.Judicial officer:Includes a Magistrate, Registrar or a Judge.Lakoko:Luo word for a Complainant or a Claimant.Larii Tal:The person who conducts or facilitates Acholi traditionalconflict resolution mechanism referred to as riyo talwhich combines the elements of mediation, arbitrationand conciliation.Plaint:Formal statement of claim. It states the facts that entitlethe Plaintiff to the remedies he or she is seeking.ix
Plaintiff:The Complainant in a civil court case. The one wholodges a complaint in court.Poro lok:A dispute resolution mechanism in the Acholi traditionwhich is akin to negotiation.Prosecutor:A government lawyer that represents the State (Uganda)in criminal matters. A criminal case is taken a wrongagainst the State and as such the case is conducted by agovernment lawyer.Sanctioning a file:Approval by the Prosecutor that on the evidenceavailable in the file, the suspect should be tried in court.Sentencing:This is handing down a punishment to a convict.Suspect:A person suspected of or alleged to have committed acrime.Remand:A period an accused person spends in prison whileawaiting the determination of his or her guilt.Riyo tal:Acholi conflict resolution mechanism akin to mediation,arbitration and conciliation.Settlement Agreement:An agreement reached by the parties after a successfulmediation or conciliation.Taxation of Costs:Judicial officer applies the law to come to the amount ofmoney the successful party should be paid.Written Statement ofDefence (WSD):A written answer to the allegations contained in the Plaint.x
INTRODUCTIONThis Guide is divided into chapters. Each chapter deals with a particular disputeresolution mechanism. The dispute resolution mechanisms are broadly classified undertwo categories, the Acholi traditional dispute resolution mechanisms and the moderndispute resolution mechanisms.Chapter one looks at poro lok which is a traditional dispute resolution mechanism akinto negotiation. Chapter two looks at riyo tal. Riyo tal, is a traditional way of disputeresolution which incorporates aspects of mediation, conciliation, arbitration andlitigation. The two mechanisms are both Acholi dispute resolution mechanisms whichplace emphasis of the community based of the adage “I am, because we are”. Anindividual is treated as a member of the community whose rights and responsibility areconsidered from the community point of view. He or she is not merely an “individual”but an integral part of a larger unit, the family, the sub clan, the clan.Chapters three to chapter seven are on modern dispute resolution mechanisms. Thesedispute resolution mechanisms place emphasis on rights and responsibilities of anindividual. Individual in this sense includes natural and non-natural persons likecompanies. Chapter seven is divided into civil and criminal litigation.1
CHAPTER ONE:PORO LOKPoro lok is a widely practiced mechanism of dispute resolution among the Acholi people.It is similar to negotiation in many aspects. It does not differ much from the concept ofnegotiation as a form of Alternative Dispute Resolution (ADR) as it is known today. Theelements of poro lok and negotiation are more or less the same but only differ in context.In the Acholi context or tradition, direct participation of the individual affected is not amust. The head of the unit be it a household, family, hamlet or clan takes responsibilityfor the unit and speaks for and on behalf of the unit. When it comes to poro lok the headof the unit speaks for and on behalf of the unit or is approached on behalf of the unit. Ittherefore follows that lapo lok may not be the actual people or persons involved in landdisputes.The term “aggrieved” party or person or “perpetuator” as used below does not onlydenote an individual, it may refer to a household, a sub clan or a clan. In the case of ahousehold, the head of the household takes up the negotiation with the head of otherhouseholds irrespective of the persons within the household who were involved in thedispute.Benefits of Poro Lok Poro lok is a way of life for the people of Acholi. The community is used to it andthey know it, so it is not something new or alien to them. Poro lok is confidential. What is discussed and agreed upon is only known by thepeople involved. What might be embarrassing if known to the public is easily settledduring poro lok. The Acholi also say “you do not wash dirty linens in public” henceporo lok is an avenue to protect personal and family image from being exposed to“outsiders”. Poro lok does not take much time compared to other dispute resolutionmechanisms. The parties agree on and set their own timeframes. It is usuallyconcluded in a short period of time. There is no cost involved in poro lok. The parties talk to each other and settle theirdisputes. The poro lok is flexible. The parties agree on what should be done and how it shouldbe done. There are no strict rules and procedures to be followed. The parties have full control of their dispute settlement procedure. They settle theirdispute as they so desire.Challenge of Poro Lok 2Enforcement of the outcome of mediation is challenging. The parties rely on thegood will of each other. What they agree upon is never made known to the public orthe community. It may therefore be difficult to get proof of what was discussed.
The Process of Poro LokPoro lok takes the following procedures;a) ApproachThe aggrieved party or the victim of the dispute approaches the other party or theperpetrator. The approach is done face-to-face in most cases, sometimes by other meanslike telephone. The timing of the approach must be perfect and well planned. It is donewhen there is no animosity. The face to face approach allows for the approaching partyto assess the mood of the party being approached and to know whether to introduce thesubject or not. If the mood is welcoming, the approaching party will go ahead andintroduce the subject. If the mood is not welcoming the party will not introduce thesubject. It is done in a very courteous and cordial manner.The aggrieved party or the victim of the land dispute will refer to the perpetrator as“omera” (my brother) or “larema” (my friend). When the approach is made theperpetrator may accept and there and then the negotiation may begin or they will agreeto meet at an agreed time and place.b) Presentation of the DisputeIf the perpetrator accepts the approach to negotiate there and then, the victim will presenthis or her grievances and will get a response from the perpetuator. The aggrieved personwill state the nature of transgression committed by the perpetrator and possibly suggestways of how the issue may be resolved.c) Response to the victimThe perpetrator or other party may reply there and then or may seek to consult and getfurther clarification from a particular member of his household in which case the victimand the perpetrator will get another time when the perpetrator will respond to theconcerns raised by the victim or the aggrieved person.d) Clarification of the ProblemThe parties in most cases do not engage in adversarial negotiation but will seek to clarifyand understand the dispute or conflict. If the dispute is clearly understood the perpetratorwill acknowledge fault on the part of the member of his household or unit and will askfor pardon from the victim.If there is no acknowledgment of fault by the perpetuator, the conflict may be referredfor riyo tal which will involve a third person. If there is acknowledgment of fault theconflict is settled there and then.e) Settlement AgreementWhen the perpetrator acknowledges fault, the victim or the perpetrator may suggest howto resolve the conflict. Once the parties have reached an agreement on how to resolve3
the conflict, they may agree on what to be done, how it should be done and who shouldperform the tasks agreed upon.f) Follow UpThe parties may follow up and ensure that what was agreed upon is implemented asagreed upon. One side might inquire from the other side what steps have been taken.4
CHAPTER TWO:RIYO TAL“Riyo tal” as a mechanism of dispute resolution focuses mainly on truth telling. It ispresided over by an elder, larii tal. It is aimed at restoring relations between contendingparties and ensuring harmony within the community. The community would gather andthey would speak in turn while holding tal (a stick) a symbol of truth telling. Holding thetal is tantamount to swearing to tell the truth as it is done with the Bible or the Koran inthe modern day justice systems. Only the person holding tal would speak while all theothers maintain absolute silence. Riyo tal, as a mechanism of dispute like culture itselfhas evolved over time. The way in which it is practiced now is not the same as it waspracticed in the past. In its current state, tal is no longer involved.Many writers equate riyo tal to mediation, conciliation or arbitration or a combination ofall the above mechanisms.1 Riyo tal differs from arbitration, conciliation or mediation insubstance and process but Riyo tal incorporates elements of arbitration, conciliation,mediation and to a limited extent litigation. Riyo tal just like mediation, conciliation,arbitration or litigation is not applied to land dispute resolutions only, it is applied to awide range of disputes.Riyo tal is anchored on community participation and involvement which may not beattuned to the principles of confidentiality and neutrality as is known and practiced inmediation, conciliation or arbitration.The major elements of riyo tal as practiced now include:a) A complaint may be lodged by any member of the community, notnecessarily a victim of the conflict.b) Community participation during the process of riyo tal is encouraged andpromoted. The contending parties need not give their consent to larii tal forany member of the public to be permitted to participate in the process.c) Larii tal plays proactive roles during the sessions.d) The appointed larii tal may involve other people to help him in the processof riyo tal.e) If the riyo tal is between clans, it is a clan that is chosen to conduct the riyo taland the clan chosen will choose the persons to conduct riyo tal.f) There is no winner or no loser. Emphasis is placed on the wrong committedrather than the wrong doer.1See Anying, Irene, Re-Envisioning Gender Justice in Access and Use of Land throughTraditional Institutions: A Case for Customary Tenure of Land Ownership in Acholi SubRegion, Northern Uganda. Copenhagen: Danish Institute for Human Rights, Atkinson,Latigo, Bergin, 2016, Piloting the Protection of Rights to Customary Land Ownership inAcholiland: Research Project of the Joint Acholi Sub-regional Leaders’ Forum (JASLF)and Trócaire.5
g) Usually, riyo tal is conducted at the disputed land or a nearby home. If theriyo tal is not being conducted at the disputed land, the community includingelders and neighbours together with the mediators and the disputing partiesvisit the disputed land to ascertain the correctness of what the parties havestated.h) Publ
disputes have long died. This guide is therefore an effort to document the various but relevant processes and procedures of land dispute resolution mechanisms appropriate and applicable within the Acholi sub region. The Guide covers land dispute resolution mechanisms, such as litigation, arbitration, conciliation and mediation.
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