INTRODUCTION
In June 2017, Chief Justice Bart Katureebe traveled from Uganda's capital Kampala to the northern city of Gulu in the Acholi sub-region. His mission was to explore problems affecting the judicial system in a “neglected” and conflict-prone part of the country (Reference P'LajurP'Lajur, 2017). The Gulu courthouse held its annual open day during his visit. Katureebe was struck by the level of public interest, telling journalists he wanted to “find out why the Acholi sub-region with a troubled history in the country, has attracted the largest crowd I have ever seen in one open court session?” (ibid).
Those familiar with the large literature exploring why people avoid lower state courts across Africa (often called magistrates' courts in common law countries and courts of first instance in civil law countries) may have shared the Chief Justice's surprise. Studies of citizen engagement with justice processes in the post-colonial era have tended to emphasize a popular preference for disputes to be handled via traditional institutions and informal courts (see e.g., Reference Chirayath, Sage and WoolcockChirayath et al., 2005; Reference LoganLogan, 2013). Yet across the continent, in areas of limited statehood like northern Uganda, where state authority is contested, judicial presence is patchy, and public perceptions of institutional corruption are widespread, citizens are actually turning to lower state courts in relatively high numbers (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020; Reference LakeLake, 2014; Reference Lake, Muthaka and WalkerLake et al., 2016; Reference MedieMedie, 2020; Reference VerheulVerheul, 2016). This empirical reality challenges common depictions of state-administered justice as “inherently illegitimate” and even “un-African,” particularly in relation to local disputes such as land wrangles, family altercations and lesser criminal charges like petty theft (Reference Dreier and LakeDreier & Lake, 2019, pp. 1195 and 1210). Existing literature on law and justice across Africa provides us with a wealth of analysis into the reasons why citizens avoid state courts and how they negotiate alternatives (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020). By investigating what motivates citizen engagement with Gulu Magistrates' Court, our article addresses the growing puzzle of how and why citizens do appeal to lower state courts in areas of limited statehood (see e.g., ibid; Reference GriffithsGriffiths, 1997; Reference Dreier and LakeDreier and Lake, 2019; Reference JacksonJackson, 2018; Reference JohnsonJohnson, 2018; Reference LakeLake, 2014; Reference MedieMedie, 2020; Reference Rubbers, Gallez, de Herdt and de SardanRubbers & Gallez, 2016; Reference VerheulVerheul, 2016).
Our focus on “limited statehood” points us toward territories and policy areas where state authority and capacity are particularly challenged (Reference Risse and StollenwerkRisse & Stollenwerk, 2018, p. 404; Reference LakeLake 2014). Existing literature argues that three interlocking structural factors deter citizen engagement with state-administered courts in such areas across Africa. First are recent histories of state-sanctioned political violence, and a concomitant lack of citizen confidence in the state and its agents to arbitrate fairly through the courts (OECD, 2007; Reference PorterPorter, 2017; Reference SriramSriram, 2007). Second is weak state capacity to administer justice due to resource shortages and procedural problems, including corruption and significant case backlogs (Reference TamanahaSage and Woolcock 2012; Tamanaha, 2011; UNHR, 2016). Finally, is the existence of an established network of informal, nonstate, and hybrid justice actors and institutions, which may be more accessible, legitimate, and effective in their handling of disputes (Reference Kyedibid; Kyed, 2011).
The three factors outlined above all obtain in the catchment area of Gulu Magistrates' Court, located in Gulu city in the Acholi sub-region of northern Uganda. Yet the court is bustling with people, case lists are lengthy and public galleries are often full. Far from people shunning the courts, magistrates seem exasperated by the extent to which they are being used, even encouraging citizens to exit the system and resolve their legal issues via other means. Our study is motivated by this empirical puzzle. Citizens appear to be using lower state courts to a far greater degree than one might expect given negative perceptions of the state justice system and theoretical insights from literature on law and justice processes across Africa. What then motivates appeals to the state justice system in areas of limited statehood and legal pluralism, where perceptions and experiences of political violence, judicial corruption, and dysfunction are widespread? To answer this question, we draw on observation, interviews, and documentary analysis conducted in and around Gulu Magistrates' Court between 2016 and 2019.
Empirically, our article builds on previous research, which identifies and elaborates upon three core modes of justification for court engagement in such contexts: the normative, the pragmatic, and the tactical (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020). These are not always mutually exclusive or clearly bounded logics, but they do demonstrate significant variation in orientations toward the law and legal authorities in northern Uganda. We show how in the perceived and actual presence of state violence, judicial dysfunction, and corruption, people can still acknowledge the authority of the courts, and endow them with the right to arbitrate, even for seemingly minor disputes. Theoretically, our findings build on ethnographically informed work on law-in-action across Africa, challenging the notion of a predictable relationship between procedural justice, trust, and institutional legitimacy (e.g., Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020; Reference Lake, Muthaka and WalkerLake et al., 2016; Reference MassoudMassoud, 2013; Reference MedieMedie, 2020; Reference Rubbers, Gallez, de Herdt and de SardanRubbers and Gallez 2016; Reference VerheulVerheul, 2016; Reference WeeksWeeks 2018). Drawing on insights from our case, we extend and enrich dominant western-focused theories of citizen-authority relations, showing not only how varied sources of court legitimation can be, but also questioning the extent to which legitimacy perceptions are a key predictor for engagement with lower state courts in areas of limited statehood.
Part I provides background to political violence, limited statehood, and judicial dysfunction in northern Uganda. Part II introduces a conceptual framing that brings sociolegal scholarship on procedural justice, legitimacy, and trust into conversation with evidence on citizen-court engagement across Africa. Part III describes our data and methodology. Part IV presents and analyses our findings. This begins by situating citizen narratives of judicial corruption, dysfunction, and delay in context. Against this empirical backdrop, we explain and analyze the diverse modes of justification for court engagement in northern Uganda. In Part V we present our conclusions.
POLITICAL VIOLENCE, LIMITED STATEHOOD, AND JUDICIAL DYSFUNCTION IN NORTHERN UGANDA
The complex relationship between northern Ugandan citizens and the central state is rooted in a violent colonial and post-liberation history. Between 1986 and 2008, northern Uganda was ravaged by a war between the Lord's Resistance Army (LRA) rebel group and the Government of Uganda (GoU) led by President Museveni's National Resistance Movement (NRM). The Acholi sub-region was at the epicenter of the violence, and it is estimated that roughly 90% of the population were moved by the government, often forcibly, into internally displaced person camps, where living conditions were terrible (Reference Allen and VlassenrootAllen & Vlassenroot, 2010, p. 15). Since the end of the war, northern Uganda remains markedly behind other regions of the country in core United Nations development indictors measuring health, education, and standard of living.
There has been a magistrates' court in Gulu since colonial times. Magistrates' courts are the lowest level subordinate court in the Ugandan legal system whose decisions can be reviewed by the High Court (Reference AdonyoAdonyo, 2012). Uganda's legal system is based on English Common law and customary law, the latter only being applicable where it does not conflict with statutory law. The magistrates' courts deal with misdemeanor offenses and have civil jurisdiction in cases where the subject matter does not exceed 50 million Ugandan shillings (roughly $14,000) (GoU 2007b). In civil land cases, court-administered mediation, sometimes called alternative dispute resolution (ADR), is theoretically mandatory before the case can begin.
During the war, Gulu Magistrates' Court was barely operational, and Human Rights Watch (2005, p. 50) noted “little or no judicial presence” across most of the Acholi sub-region. When the courts did sit, progress was hampered by staff and resource constraints and a large case backlog. Since then, government and justice-sector donors have identified “consolidation of state authority” as a key strategic area for post-conflict investment (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020, p. 562; GoU, 2007a). The large-scale Peace, Recovery and Development Plan, for example, sought to “re-establish law and order in communities” and build “functioning judicial and legal services” (GoU, 2007a, p.33). Launched in 2007, funds and programming were directed to address the “sketchy” presence of justice institutions and the “inadequate, vandalized and in some places nonexistent” magistrates' courts in conflict-affected areas of the North (ibid, p.45).
Despite investment, the performance of magistrates' courts remains widely critiqued by citizens on two, interrelated grounds. First, they are marred by corruption and professional malpractice. Second, resource constraints, backlogs, and delays continue to be major feature of the courts. In Gulu, there is a broad perception that “justice is for sale” in the courthouse (ACCU, 2014; Reference HopwoodHopwood, 2018). Uganda often ranks as one of the most corrupt countries in the world, with the judiciary and police viewed as particularly corrupt (Reference InternationalTransparency International, 2021). The Anti-Corruption Coalition of Uganda contends that magistrates' courts operate like “circus[es] of commerce” and “commonplace trading centre[s]” (ACCU, 2014, p. 7). The Chief Justice has referred to judicial corruption as “a cancer that is eating away at the heart of our country,” and Gulu's Resident District Commissioner has lamented “corridor magistrates,” who “cause damage to the image of the judiciary because they get bribes from clients and litigants” (Reference P'LajurP'Lajur, 2017). The President himself has recognized the scale of the problem, recently telling newly appointed judges: “the population must trust you knowing that once a matter goes to the court the judge will decide on it without bias or corruption” (Reference LuleLule, 2018). Development partners have invested significant sums on anti-corruption initiatives in Uganda, and the government regularly expresses declaratory commitment to these measures (Reference Scharbatke-Church and ChigasScharbatke-Church & Chigas, 2016, p. 8). Yet despite an exemplary legal and institutional framework for combatting corruption in public office, it has “proven highly resilient” in the justice sector (ibid).
In terms of inefficiencies, backlogs, and delays, 32.1% of cases in the justice system have been pending for two or more years (JLOS, 2021, p. 20). In Gulu Magistrates' Court, the backlog is especially pronounced with regards civil land suits and appeals.Footnote 1 In criminal cases, backlogs extend average length of stays on remand. This currently stands at 19.2 months for capital offenses and 3.3 months for petty offenses (JLOS, 2021, p. 31). Meanwhile, prisons in Uganda are at 301.9% capacity with over 50% of inmates on remand, the “vast majority” of whom lack legal representation due to an inadequately resourced legal aid system (JLOS, 2021, pp. 15 and 58; HRW, 2016). Backlogs are felt keenly in northern Uganda, where people report higher rates of legal problems than other parts of the country (Hague Institute for Innovation of Law HiiL), (2020, p. 39). Gulu is one of the divisions “leading” in crime according to the Uganda Police Force, with notably high levels of arson, domestic violence, child neglect, house break-ins, theft, and assault (Reference Scharbatke-Church and ChigasScharbatke-Church & Chigas, 2016, p. 10; UPF, 2020). Northern Uganda also has higher rates of civil land disputes compared with the rest of the country (Hague Institute for Innovation of Law (HiiL), 2016, 2020; p.48).
Dynamics of judicial corruption and weak capacity are best understood in the context of Uganda's authoritarian rule. Literature on African statehood emphasizes the tightrope walk authoritarian regimes chart when trying to balance nominal support for the rule of law with the core political imperative of regime survival (Reference TrippTripp, 2010). In Uganda, this has rendered judicial administration an “area of limited statehood,” a concept which refers to territorial areas or sectors in which the government has a limited ability or willingness to “implement and enforce rules and decisions and/or in which the legitimate monopoly over the means of violence is lacking” (Reference Krasner and RisseKrasner & Risse, 2014, p. 549). Here, limited statehood is not a straight-forward question of resource constraints, but also results from strategic and tactical decisions by political elites who have little interest in strengthening institutions that threaten their authority. In such contexts, the state may engage in talk of rights and institutional reform but it also “turns a blind eye” to official malpractice when it is political salient, or instrumentalises its own judicial apparatus for political ends (Reference Scharbatke-Church and ChigasScharbatke-Church & Chigas, 2016, p. 32). Reference TapscottTapscott (2021, p. 27) conceptualizes this mode of authoritarian rule in Uganda as “arbitrary governance”: while citizens usually experience the state as “woefully fragmented and low capacity” in relation to the provision and exercise of public goods such as justice, state power remains “ever-present” in people's minds because it can be imposed or withdrawn in unpredictable ways.
In the midst of limited statehood, scholars have emphasized how people overwhelmingly “eschew” the state in their justice decisions (Reference Sage, Wookcock, Tamanaha, Sage and WoolcockSage & Wookcock, 2012, p. 2). Relatedly, literature highlights the societal imperative of restoring or maintaining “social harmony” in the aftermath of wrongdoing, over and above individualized justice and perpetrator punishment (Reference PorterPorter, 2017). Research on both gender-based violence and land disputes in Acholiland, for example, finds that people avoid state justice, preferring to resolve their issues through family meetings or local courts (Reference Hopwood and AtkinsonHopwood & Atkinson, 2013; Reference PorterPorter, 2017). In Uganda, Local Council Courts (LCCs) sit beneath the magistrates' courts, and operate at the village (LC1), parish (LCII) and sub-county (LCIII) level. They have jurisdiction to try minor criminal cases and to hear civil disputes in respect of land held under customary tenure, family disputes, and inheritance disputes (GoU, 2006). While LCCs are an official part of the Ugandan judicial system,Footnote 2 they reflect their communities' cultural norms, both in terms of process, which inclines toward mediation rather than adjudication, and in their understandings of crime, liability, and appropriate outcomes. In fact, they often function as community meetings. People refer to the LCCs as of a form “local,” “embedded,” and “informal” justice, making clear distinctions between these fora and the more “distant”, magistrates' courts (Reference PorterPorter, 2017). Often disputes do not even get as far as the local courts, being settled instead during family meetings, or consultations with religious leaders or clan elders.
Data from largely scale surveys, however, challenges the idea that citizens are avoiding lower state courts en masse. In 2015, the Afrobarometer public attitudes survey included questions on individuals' experiences and perceptions of the legal system. Broadly in line with continent-wide findings, 14% of respondents in northern Uganda reported they had “contact” with state-administered courts in the preceding year (Afrobarometer, 2015, p. 52). Other large-scale survey data shows that across Uganda, on average, 25% of individuals turn to the police and courts (21% and 4%, respectively) after experiencing a legal problem or dispute, although this may be after informal attempts at resolution had failed (Hague Institute for Innovation of Law (HiiL), 2020, p. 72). Contact with courts was similar across rural and urban divides; and across levels of education (Afrobarometer, 2015, p. 72; Reference LoganLogan, 2017, p. 16). Contact with the courts was also similar across poverty levels, with those reporting high levels of poverty just as likely to have contact with the courts as those reporting no lived poverty (Reference LoganLogan, 2017, p. 16).
If levels of contact with the courts appear puzzling, so too do citizens perceptions. Afrobarometer data show a majority of northern Ugandans expressed low levels of trust in the courts and identified high levels of corruption among magistrates' and judges (Afrobarometer, 2015, pp. 43 and 47; Afrobarometer, 2019, pp. 61 and 68; Reference Isbell and DrydingIsbell & Dryding, 2018, pp. 1 and 2). Yet despite negative perceptions, an overwhelming majority of respondents saw the courts as “legitimate,” either “agreeing,” or “strongly agreeing” that “the courts have the right to make decisions that people always abide by” (Afrobarometer, 2015, p. 31; see also Afrobarometer, 2017, p. 26). According to two recent studies, despite citizen perceptions of corruption among magistrates increasing notably over the last decade, “popular support for the legitimacy of the courts and the police has never been higher over the past 16 years and has never dropped below three quarters of the population” (Reference Isbell and DrydingIsbell & Dryding, 2018, p. 2; Reference KakumbaKakumba, 2020).
In northern Uganda then, a context of limited statehood and legal pluralism, where citizens express deep concern about the ability of the state to deliver justice in a fair, lawful, and effective way, people still make the decision to turn to legal authorities and use legal solutions to solve their grievances. Our article engages with this puzzle, seeking to advance our understanding the phenomenon whereby people simultaneously report negative perceptions and encounters with the state justice system, while also conferring rule-of-law institutions “the right to arbitrate” (Reference Dreier and LakeDreier & Lake, 2019, p. 1197; Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020).
CONCEPTUALIZING ATTITUDES TOWARD LOWER STATE COURTS IN AREAS OF LIMITED STATEHOOD
Below we engage with sociolegal scholarship on procedural justice, legitimacy, and trust, bringing this into conversation with evidence across Africa on citizen engagement with legal authorities. This overview demonstrates the need for careful empirical work that explores why citizens turn to the courts under inauspicious circumstances and how they understand the terms of their engagement, while also highlighting the complexity of authority relations and social order regulation in areas of limited statehood.
In sociolegal studies, procedural justice theory (PJT) remains dominant in accounts of citizen-authority relations and legal socialization (Reference JacksonJackson, 2018, p. 146). According to PJT, when citizens believe they have been treated with dignity by trustworthy, neutral state actors and given a voice in proceedings, they will draw on these interpersonal experiences to form positive judgments about the legitimacy of legal authorities (ibid; Reference TylerTyler, 2006). This, in turn, motivates engagement and compliance with rulings and the law more generally. While it is acknowledged that legitimacy can have other sources—usually measured as effectiveness, distributive justice, and lawfulness—empirically, studies overwhelmingly conclude that procedural justice is the “key antecedent to legitimacy perceptions” (Reference Nagin and TelepNagin & Telep, 2020, p. 762).
Understanding sources of empirical legitimacy presents challenges in contexts like northern Uganda, where people can simultaneously hold “baseline assumptions” about state justice being procedurally unjust while also expressing faith in the moral authority of the law and legal institutions (Reference Bradford, Huq, Jackson and RobertsBradford et al., 2014, p. 248; Reference Dreier and LakeDreier & Lake, 2019). Because support for PJT is based on a biased sample of western countries, its “transcultural portability” has been questioned in recent years (Reference Bradford, Huq, Jackson and RobertsBradford et al., 2014, p. 248). Tests of PJT in Ghana and South Africa for example, show that judgments about procedural fairness are “crowded out” by awareness of institutional corruption, high crime rates, and political violence (Reference Jacksonibid; Jackson, 2018, p. 153; Reference TankebeTankebe, 2009). According to these studies, legal outcomes are valued over legal process, and effectiveness is the strongest positive predictor of whether people see legal authorities as promoting a “shared vision of appropriate social order.” (Reference Bradford, Huq, Jackson and RobertsBradford et al., 2014, pp. 255–8; Reference JacksonJackson, 2018). This complements evidence from South Africa showing that even in cases where victims' procedural expectations of the court are surpassed, they may not re-use or recommend the courts to others (Reference Walker and LouwWalker & Louw, 2005).
Other evidence from Africa nuances the picture further, showing how normative imaginaries of state justice can legitimate legal institutions, even in the perceived absence of any conventional legitimacy measures (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020; Reference Rubbers, Gallez, de Herdt and de SardanRubbers & Gallez, 2016; Reference VerheulVerheul, 2016). Analyzing Afrobarometer data at the continent-wide level, Dreir and Lake find that contrary to the predictions of much legitimacy research, “the perceived right of the state's rule-of-law institutions to arbitrate and govern is surprisingly unaffected by negative personal experiences” (2019, pp. 1195 and 1209). This is because people make a distinction between the “intrinsic authority” of justice institutions per se, and their dissatisfaction with poor performance in practice (ibid, p. 1197). While not engaging with PJT directly, ethnographic studies of public authority in Zimbabwe and DRC find that despite widespread corruption, access problems, and disappointing outcomes, people turn to lower state courts because they are inspired by the “ideal” of the law and the legal system (Reference Rubbers, Gallez, de Herdt and de SardanRubbers & Gallez, 2016, p. 103; Reference VerheulVerheul, 2016). Further, people may have internalized a normative idea of what it means to be a “good citizen,” and are willing to perform this role, even against the backdrop of severe judicial dysfunction and state violence (ibid; Reference VerheulVerheul, 2016).
These normative explanations are important but insufficient in fully explaining recourse to lower state courts across the continent. Research in Botswana, Malawi, Nigeria, and South Africa for example, shows how people can develop pragmatic expectations about the potentially beneficial role state courts might play in a particular dispute, even if they are deeply critical of how state justice functions more broadly (Reference Cooper-Knock and OwenCooper-Knock & Owen, 2015; Reference GriffithsGriffiths, 1997; Reference JacksonJackson, 2018; Reference WeeksWeeks, 2013). When injustice situations arise, legal avenues may be pursued based on calculations that outcomes will be favorable. These calculations are contingent on the nature of the dispute and other situational factors like “what is available,” “what works best,” and “what can I afford,” rather than being moral decisions that are “content independent” (Reference Baker and ScheyeBaker & Scheye, 2007, p. 515; Reference JacksonJackson, 2018, p. 149). Here we observe a conceptual distinction between “legitimacy” and “trust” (Reference Jackson, Gau, Shockley, Neal, PytlikZillig and BornsteinJackson & Gau, 2015; Reference KainaKaina, 2008). While the former captures the duty people feel to defer to decisions and rules rooted in an “internalized sense of willing constraint and deference” the latter represents the faith they place in an authority's “present and future performance” in relation to a particular legal problem (Reference Jackson, Gau, Shockley, Neal, PytlikZillig and BornsteinJackson & Gau, 2015, pp. 7 and 14).
In practice, trust expectations may be fragile. In marginalized communities, where the state justice system is seen as “illegitimate, unresponsive and ill-equipped to ensure public safety,” “legal cynicism” may be rife (Reference Kirk and PapachristosKirk & Papachristos, 2011, p. 1190; Reference Oliviera and JacksonOliviera & Jackson, 2021). Yet, as studies in the United Kingdom and United States demonstrate, citizens can develop what Reference BellBell (2016) calls “situational trust” in individual legal officials, or in role of the state justice system to effectively handle specific disputes (see also Reference KochKoch, 2018). Trust, in this context, does not “imply a total sense of faith,” rather it “includes some expectation of reliability and requires risk,” and is “tightly attached to context.” (Reference BellBell, 2016, p. 326).
These accounts resonate with research on legal pluralism across Africa, which examines the ambivalent feelings people have about different justice forums, and the personal and structural constraints they face as they seek out accountability and redress (Reference GriffithsGriffiths, 1998; Reference Mustapha and GamawaMustapha & Gamawa, 2018). Responses to gender-based violence in Cote D'Ivoire and DRC, for example, show that the “state became a site of redress” for some women because among the range of imperfect options, including family meetings, religious forums and customary courts, the criminal justice system was believed most likely to apprehend, punish and deter the offender (Reference Lake, Muthaka and WalkerLake et al., 2016, p. 559; Reference MedieMedie, 2020). In neither context had women who reported sexual violence, “truly internalized” the moral authority of the criminal justice system (Reference Lake, Muthaka and WalkerLake et al., 2016, p. 557). On the contrary, they viewed the system as corrupt, inaccessible, and often hostile. Yet, for a range of reasons rooted in the dynamics of the wrongdoing in question, certain expectations, and “situational trust,” they were “willing to experiment with what these…systems had to offer, hoping that the law “could be made to work for them in this instance” (Reference Lake, Muthaka and WalkerLake et al., 2016, p. 550, quoting Sarat 1990, p. 346).
Of course, making the law “work” means different things to different people. People may be seeking justice through the courts, but this does not mean they are seeking it through a legal decision alone. In practice, for example, the court may be equally important as an arena in which truths can be shared and acknowledged (Reference JacksonJackson, 2018; Reference MoultMoult, 2010), or as a process that is designed to shame, isolate, frustrate or exhaust those involved (Reference FeeleyFeeley, 1979). Moreover, courts may be the main arena in which a dispute is resolved or one of many arenas in which people are seeking justice simultaneously (Reference GriffithsGriffiths, 1998; Reference MedieMedie, 2020; Reference WeeksWeeks, 2013).
In other words, the forms of justice that people seek through the lower state courts can be broad and varied. Even so, there are clearly cases in which the ends people seek cannot easily be described as “justice” at all. The strategic use of courts is documented among wealthier people and elites across Africa. In DRC and Tanzania for example, studies show how the threat of court proceedings is used to intimidate the vulnerable in debt and land cases (Reference Askew, Maganga and OdgaardAskew et al., 2013; Reference Rubbers, Gallez, de Herdt and de SardanRubbers & Gallez, 2016, p. 251). In DRC, studies suggest poorer people also engage with legal authorities to harness the coercive power of the state to serve a diverse range of social ends including revenge, exclusion, and banishment (Reference Hilhorst and DoumaHilhorst & Douma, 2018). Here people may take advantage of major procedural problems in the formal justice system to invoke significant harm on opponents and/or secure material benefits (ibid; Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020). This highlights a need to examine not only how citizens “use” lower state courts, but also how they “misuse” them. A broader effect may be the reproduction of problematic elements of the state justice system, including corruption and lawlessness.
Altogether, the evidence suggests that even where people are deeply critical of corruption and dysfunction in the state justice system, lower state courts can retain an important regulatory role in the resolution of crime and disputes that cannot be replicated by nonstate actors. However, the precise nature of this role must be empirically determined, it cannot be analytically assumed. As we have argued elsewhere, much appears to depend on how people reconcile how they think the state ought to act, how they expect it to act, and how they need it to act in a given situation (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020). Individual idiosyncrasies will always play an important role in this process. Nonetheless, because people's choices are shaped by their structural context, we would also expect patterns to emerge. Building and extending previous research, we demonstrate how, in the case of northern Uganda, there are three dominant modes of justification for citizen engagement with the courts, which exist on a continuum from the normative, to the pragmatic, to the tactical (ibid). By exploring them in context, we highlight a range of functions the state plays in the local justice landscape, while also advancing our understanding of contested concepts such as legitimacy, trust, and corruption in areas of limited statehood.
DATA AND METHODS
Data and analysis presented in this article are based on a 3-year study of citizen engagement with Gulu Magistrates' Court, which ran between 2016 and 2019. Our qualitative research employed three central methods: direct observation; in-depth interviews; and documentary analysis. Our data consisted of ethnographic field notes and diary writing, interview notes, and official court documents. The study also draws upon long-term ethnographic and qualitative field research by author one and author three on topics related to justice-seeking and dispute resolution in northern Uganda since 2006.
Our methodology drew on ethnographic approaches exploring how “the law” is understood, used, avoided, and contested in everyday disputes (e.g., Reference Ewick and SilbeyEwick & Silbey, 1998; Reference GriffithsGriffiths, 1998; Reference MerryMerry, 1990). Our methodological entry point was the courtroom. Inspired by a long tradition of ethnographic courtroom work (e.g., Reference ClairClair, 2020; Reference Conley and O'BarrConley & O'Barr, 1990; Reference WalentaWalenta, 2020) we investigated why cases ended up in the magistrates' courts, and how people made sense of the courts as a space, a process, and an actor in the broader “life of the dispute” (Reference GriffithsGriffiths, 1998; Reference WeeksWeeks, 2013). As such, we triangulated observations, interviews, and textual analysis of court documents to build an in-depth understanding of the role and appeal of the law and courts in a context where people are stereotypically cast as “law avoiders” (Reference Kritzer, Starr and GoodalesKritzer, 2002).
We began with 3 months direct observation in Gulu's Chief and Grade 1 Magistrates' Courts, between 2016 and 2019. We closely observed formal routines of court practice, as well as the actions and behavior of court professionals and citizens within the courtroom. We also observed the off-the-record interactions that occurred inside and outside the courtrooms. Throughout, we paid special attention to the body language, tone, symbolism, and documentation in play, building up a rich picture of the everyday life of the courthouse. The data collection team included the authors and five experienced Acholi speaking Ugandan researchers. During observation, we used court reporting questionnaires, recording case details and descriptions of proceedings.
Observation was supplemented with semi-structured, in-depth interviews with members of the judiciary, prosecution services, prison services, legal representatives, local councilors, and civil society organizations and international donors working on access to justice issues. In total, 32 practitioners were interviewed. Questions were open-ended, exploring whether the state justice system was deemed “fair” and/or “effective” and/or “authoritative”; what cases came to court and why; and the role of “local” justice in resolving disputes.
We selected 16 individual cases for in-depth study, aiming to “micro” contextualize (Reference Falk MooreFalk Moore, 2005) a range of disputes that had reached the court. Our case selection was designed to cover civil and criminal cases, and to include respondents who differed in terms of gender, age, class, and urban/rural location, to ensure representation of different socioeconomic and demographic strata of the population. Twelve of the cases were selected during court observations. Court-users were approached after hearings and invited to participate in the research. We accessed the remaining four cases through existing ethnographic research by the authors on land-holding groups and landless people in the environs of Gulu town since 2017. Of the cases selected, five were civil cases, all of which were land disputes; and 11 were criminal cases, five of which were directly linked to the civil land cases. The criminal cases represented common charges, including one criminal trespass case; one common assault case; one malicious damage to property case, one arson case; three theft cases, three simple defilement cases, and one case of rape that was referred to the High Court.
Where possible, we interviewed both “sides” of the dispute, following up with respondents at regular intervals to track the progress of the case. Questions were open-ended, including prompts on how the case came to court; whether alternative methods of resolution had been sought; how they felt about the proceedings so far; whether they perceived the system to be fair and/or effective; and how they perceived the role of professionals including police; magistrates; prosecutors; and lawyers. In total, we conducted 47 interviews, all of which have been pseudonymized.
Our ethnographic field notes, and interview data were supplemented by documentary evidence. Court case summary statistics for the Gulu magisterial area between 2013 and 2017 provided useful insights into the number of cases being registered at the court; the type of cases; and the case backlog. This was despite the piecemeal nature of this data after 2015. Where possible, we also accessed court records for the 16 cases we followed in-depth. Our textual analysis of these documents yielded important insights into legal argumentation, evidence, precedents, and verdicts but also highlighted the gap between the written record and actual experiences of dispute resolution.
Borrowing from constructivist forms of grounded theory we operated inductively, without preconceived categories, interspersing our data collection with analysis and further discussion with practitioners and court-users to ensure we were accurately reflecting participants' perspectives (Reference CharmazCharmaz, 2014; Reference Glaser and StraussGlaser & Strauss, 2017). Key themes were identified from our data using a three-step inductive method, which involved developing and sharing initial, focused, and theoretical codes, which we analyzed via a process of memo-writing in order to build theory from our data (ibid). We used regular discussion across the research team, referring to our research diaries to ensure theoretical insights were closely informed by our observational and interview data. Quotations indicate dominant themes identified in the data.
Making sense of court engagement: Normative, pragmatic, and tactical modes of justification in an area of limited statehood
Against the backdrop of judicial corruption and dysfunction we identified three core modes of citizen justification for court engagement in Gulu. The first was moral, based on normative assessments of the empirical legitimacy of the courts. Here, people drew distinctions between how state justice ought to function and how it operated in practice. Ideal visions of state justice could motivate engagement with the court on the basis of abstract moral virtues assigned to it, regardless of the extent to which state agents were perceived or known to be subverting formal procedure and norms in practice. Second, we identified pragmatic modes of justification, where citizens placed circumspect trust in magistrates' courts in the belief that they would deliver more effective dispute resolution than other options in a particular case. When we speak of “pragmatic” engagement we are referring to people settling for a particular system, despite its flaws. This was not abstract idealism overriding an assessment of courts in practice. Rather, it was an act of acquiescence, with citizens seeking the forum most likely to deliver the redress they sought, however imperfect. Finally, we identified ways in which marketized justice involving the illicit exchange of money between citizens and state agents motivated tactical engagement, allowing people to use the court process to take revenge on opponents and create leverage in wider disputes. Such practices occurred when people were seeking ends other than “justice” and/or when their definition of “justice” differed markedly from formal definitions of the term.
Situating narratives of judicial corruption and dysfunction
In Gulu, perceptions and experiences of corruption and delay were almost universal, yet as noted above, shared knowledge of procedural irregularities and institutional flaws translated into diverse modes of justification for court engagement. Before presenting and analyzing these modes of justification in more detail, we situate citizen-court engagement in everyday narratives of judicial corruption and delay in the Gulu courthouse.
Adorning the walls of Gulu magistrates' court are urgent-sounding notices, which state:
HOTLINES TO REPORT BRIBERY IN COURT!!! HAS A COURT OFFICIAL ASKED YOU FOR A BRIBE FOR ANY SERVICE IN COURT? THIS IS ILLEGAL…. REPORT ANY SUCH INCIDENT BY SENDING A TEXT MESSAGE TO ANY OF THESE NUMBERS….
Court users dismiss these notices as a façade. “Corruption is not a problem affecting the system,” a well-established lawyer told us, “corruption is the system” (see also Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020, p. 573). Yet while always pejorative, the term corruption lacks stable meaning because it refers to the “transgression” or “blurring” of boundaries between public and private life that are not fixed (Reference Muir and GuptaMuir & Gupta, 2018, p. S5). In the Gulu courthouse monetary exchange between officials and citizens was perceived along a continuum from the improper to the illegal. Interpretivist studies of public service administration across Africa help explain this, showing how a range of “practical norms” regulate public services and underpin “real governance” in areas of limited statehood (de Reference de Sardan Jean-PierreSardan Jean-Pierre, 2015). In Gulu, practical norms diverged from official rules to varying degrees. For example, court staff regularly requested additional payment from court-users for the photocopying of documents. This was often “quasi-tolerated” by citizens, viewed as “play[ing] around with the ‘spirit’ of the rules” without significantly undermining the judicial process (ibid, pp. 47–48). Other forms of monetary exchange were understood as entirely “transgressive” because they “deviate[d] squarely from both the letter and the spirit of public or professional norms,” as was the case when court judgments were “bought” by a litigant (ibid, p. 47).
In the courthouse, most requests for money to the public were framed as “palliative” acts (ibid, p. 48), which played on chronic resource shortages. For example, police lacked even the most basic items to fulfill their role. While they were equipped with boda-boda's (motorcycles), they had insufficient budget to purchase fuel and regularly requested payments to cover transport costs to attend a crime scene or arrest a suspect. Other requests for “small money” might be linked to court operating expenses, such as the release of information related to the progress of the case. When court clerks asked for photocopying money, for example, it was perfectly reasonable to assume they may be having to privately source ink, paper, and repairs for office equipment. By framing their requests as palliative acts, the police and the clerks were seeking to preserve their professional image and protect themselves from accusations of corruption. Usually, court-users obliged. Dennis, a defendant involved in a criminal assault case and a civil land case explained: “clerks approach us for some small money, we give it to them to motivate them.” As with money exchanged for fuel, this was referred to as “facilitation” or “appreciation.” Some court-users barely registered these improper transactions and cast little judgment, while others resented but broadly tolerated these exchanges and sometimes expressed satisfaction, particularly after a positive outcome such as the retrieval of an important document (see also Reference Rubbers, Gallez, de Herdt and de SardanRubbers and Gallez, 2016).
Often, though, the line between quasi-tolerated and transgressive practical norms was clearly crossed, and court-users were sucked into a system of corruption in the Gulu Magistrates' Court that operated through organized “syndicates” (ACCU, 2014, p. 9; Reference Scharbatke-Church and ChigasScharbatke-Church & Chigas, 2016, p. 8). Rumors circulated around the court that state attorneys had a “price list” for acquittal in criminal cases, and that magistrates' sought “best offers” ahead of rulings. In a theft case we followed, for example, acquaintances of the defendant were informed by a prosecutor that if they wanted to secure his release, direct payment of 950,000 Ugandan shillings (roughly $260) would be far cheaper than hiring a defense lawyer.
Lawyers explained that payment was usually overseen by court clerks who acted as “conduits” and “bedrocks” in the system of extortion (see also ACCU, 2014; Reference Scharbatke-Church and ChigasScharbatke-Church & Chigas, 2016, p. 8). Here we observed a monetization of the discretionary role that court clerks often play in court systems (Reference MoultMoult, 2010). According to one lawyer: “court clerks pick from everybody. From the complainant, from the accused. They are the middle person. They access everywhere.” Defense lawyers could also be part of the syndicate—sometimes willingly, at other times because it seemed unavoidable. As one explained:
The court system here is very corrupt. I am telling you, it is institutionalized corruption. The judge will send the clerk, and the clerk will say, “the magistrate sent me, he is about to make his ruling… you talk to you client.” If I refuse, I receive injustice, but it is my client who also losses… You cannot avoid the payments; you have to be part of the system because it is evolving on such practices. You have no way out and it is a terrible thing. If you don't have money, you may not get justice’.
Corruption may have been “institutionalized” at the court but it was not inevitable. Certain court characters had a professional standing that acted like a forcefield, repelling attempts at illicit transactions. Patrick, a well-regarded defense lawyer explained: “I am senior to most court officials, so they don't do funny things with my cases.” Court-users also made distinctions between magistrates' “trying their level best to make justice prevail” and those “trying to destroy the whole justice system.”
Many anthropologists argue that defining the parameters of corrupt practice is a value judgment that is always “perspectival, evaluative, and performative” (Reference Muir and GuptaMuir & Gupta, 2018, p. 5). Yet this seems excessively cautious and relativistic in our context. While a singular definition of “corruption” was not offered, certain practices in the courthouse were unanimously regarded as corrupt. Importantly though while many citizens were subject to corruption in distressing ways that seemed to deny any possibility of securing a just verdict, this did not automatically deter engagement with the court. Further, some court-users actively engaged with the courts because of transgressive practical norms that could work in their favor. In short, as we shall see, citizens themselves were “often the instigators of corrupt acts” (Reference Scharbatke-ChurchScharbatke-Church, 2016).
In addition to illicit transactions, delays and waiting also defined the experience of magistrates' court justice. Often delays were orchestrated by officials to deliver an outcome that had been paid for by a party to the dispute, or to induce payment. In criminal proceedings, delays were also caused by a striking lack of evidence. The criminal justice system is so lacking in resources that the costs of collecting evidence are often passed onto parties, further establishing the “civil” characteristics of criminal cases and exaggerating the advantages of those with more power or money. Magistrates explained that if prosecutors weeded out cases with inadequate evidence, there would be almost nothing left. Meanwhile, in civil cases, delays were often linked to corruption and weak evidence, but other complex factors were present too. In bigger land cases, for example, regular adjournments might be due to magistrates' fears of offending someone powerful. It could be difficult to assess the interested parties, and both sides might have political connections or be wealthy enough to appeal cases, potentially bringing corrupt decisions to light. Delays created the possibility that such cases would burn out and could therefore be a strategic abdication of authority as well as a money-making strategy.
Delays in cases also resulted from more prosaic realities including human resource shortages and absenteeism. By way of illustration, we followed one civil land case initially filed in December 2013, involving 1 plaintiff and 11 defendants. As of August 2019, the case was ongoing after 37 court hearings. Evidence was heard at only 6 hearings, the remainder being adjournments due to the absence of at least one individual necessary for the progress of the case, be it a witness, defendant, plaintiff, lawyer, prosecutor, or magistrate. Reasons given ranged from nonpayment of lawyer fees, to sickness, to professional duties outside of the courtroom like trainings. In general, civil and criminal hearings overwhelmingly end either in adjournment or case dismissal. In 3 months observation in the courts, we witnessed only a single judgment. Where cases continued, engagement with the court became embedded in the structure of neighborhood disputes. “I see these people everyday,” one litigant in a land case told us, “usually things are normal and peaceful…but when you are in the court room you just want to throttle them.” There was also widespread feeling that many of these cases were ultimately irresolvable and appeals to the state justice system would continue “for years” as one plaintiff put it, until one side dies, which is what happened in the case referenced above. When we asked him why, he echoed a widely expressed sentiment: the court played a valuable, if imprecise, and inconsistent role in the broader life of the dispute in question.
In sum, most court users had plenty of social knowledge about the procedural irregularities and long delays they were likely to encounter. Most expressed frustration at corruption and delays, but also had a practical understanding of both as part of the everyday reality of the court. As we show in the remainder of the article, while this social knowledge did not automatically deter people from engaging with the courts, it did shape people's perceptions of the value of state justice, and, in turn, their motivation for turning to the courts, in different ways.
Why turn to the lower state courts?
Normative modes of justification: The idea(l) of the state and the empirical legitimacy of the courts
Some people justified recourse to the courts in terms of moral ideas about how the state ought to function in the regulation of social order. Normative commitments to a hypothetical state can flourish in situations where one's experience of the real state is far from positive (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020; Reference GuptaGupta, 1995; Reference IsmailIsmail, 2006; Reference VerheulVerheul, 2016). Because they were so familiar, experiences of corruption and institutional dysfunction were galvanizing terrain for lively debates about problems with the existing political dispensation and how things might be better. In these discussions, people conceived of the possibility of the state as an abstract entity distinct from the government officials and agents who misgoverned and misappropriated it. Moses, an accuser in a theft case explained:
good systems are being destroyed by the wrong people who act as implementers in the position of government employees. The people who are set to handle the good systems are handling for their own benefit but not for the community at large.
People expressed respect for “the law” and “the constitution,” particularly as juxtaposed to its corruption. Jackson, who was on trial for assault, condemned police, prosecutors, and magistrates for a lack of professionalism and willingness to take bribes, but this only sharpened his defense of the ideal of state-administered justice. The state justice system, he argued, was “fair” but the court was “not effective” because its agents violated the constitution. This was a view widely shared. Court-users regularly emphasized how judicial officers deviated from “written laws” and “good procedures.”
This common idea of “good system, bad people” reflected daily experiences of state justice in which state power was encountered intimately: “close to the skin, embodied in well-known local officials” (Reference AretxagaAretxaga, 2003, p. 296). While this encounter was often negative, when people articulated a disconnect between how they wanted the state to function and how it was actually functioning, they were not rejecting the state idea, rather they were constructing a more perfect state imaginary as well as ideas about good and proper citizenship (Ibid; Reference AbramsAbrams, 1977; Reference GuptaGupta, 1995).
In explaining decisions to take cases to court, people referred regularly to “the law” and “legal ways” as a means of them fulfilling their duties as citizens (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020; Reference VerheulVerheul, 2016). Regardless of procedural shortcomings corroding the courthouse, there existed a normative belief that referring cases to legal authorities was the appropriate thing for a citizen to do, not least because law was preferable to violence (see also Reference MerryMerry, 1990, p. 170). Ronald, who was involved in a civil land dispute with a neighbor that had escalated into a criminal trespass case explained he had taken “the legal way” so as not to “tarnish the family name.” The alternative, he said, would involve violence—probably mob justice—and he did not feel comfortable with option. Even after negative court experiences, people said they would engage with the process again. Godfrey, a businessman who reported an employee for theft explained: “though there is total delay… there is no way how you can avoid it if you want to do it in the right way”; while Dennis, a defendant in a civil land case and a criminal assault case, said: “we are in the modern world, and the law has to guide us accordingly.”
It might be tempting here to suggest that people were expressing something akin to Max Weber's notion of rational-legal authority: the argument that certain institutions and actors are perceived as rightful regulators of social order because they are, in theory, guided by formal rules and laws and function according established administrative procedure (Reference WeberWeber 2019). This idea of legitimacy, however, was too reductive and static in our context. In fact, our findings aligned more closely with Beetham's critique of Weber's framework: that legitimacy is not an epiphenomenal property that is believed in, but rather that “a given power relationship” is considered legitimate when it “can be justified in terms of [people's] beliefs” (Reference BeethamBeetham, 2013, p. 11; Reference WeigandWeigand, 2015, p. 11).
While there clearly existed a normative mode of justification for engaging with the magistrates' courts, people's ideas about how state justice ought to function were highly diverse. Some expressed support for a liberal concept of the rule-of-law rooted in procedural justice, the written constitution, judicial independence, and the separation of powers. Others, however, expressed state ideals based on patriarchy, gerontocracy, and even personalized rule (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020). For example, citizens involved in cases often referred to the magistrates as “representing” those in government. For many this was precisely the problem but for others it elevated the public authority of the court. This must be understood in the context of Ugandan politics. Three decades of NRM rule have produced a “political culture” in which state modes of conducting and maintaining power have become “embedded” in local ideational and political structures (Reference Vokes and WilkinsVokes & Wilkins, 2016, p. 583). Certain “techniques” and expressions of power are valorized, including norms of patriarchal authority capable of maintaining stability and social order (ibid, pp. 586 and 592). For many, President Museveni himself is the “figurative” symbol of this patriarchy (ibid). A magistrate explained that people often appealed to the state courts because they believed the President had total control over judicial decisions. He speculated they might have met the President on the campaign trail and he may have:
wish[ed] to give them the idea that he is with them…people believe he can give a directive to resolve a case in land disputes. So many people think that…So, they have met him, they think he will be on their side, and they think I am connected to him.
In sum, state imaginaries can motivate a willingness to engage with the lower state court, legitimating its role in the regulation of social order. The ideas citizens had about how state justice ought to function in their lives were not necessarily invalidated by procedural problems or other disappointments encountered. Yet, while state imaginaries are powerful sources of empirical legitimation in contexts of judicial dysfunction, ideals remain heterogenous. While many invoked ideals of liberal governance, others expressed something more akin to what Reference AretxagaAretexga (2003, p. 396) described as “longings for a good, paternalistic state.” These findings extend our understanding of how varied sources of empirical legitimacy can be in areas of limited statehood. There was a great deal of diversity in the “normative criteria that people use[d] to judge the moral right to rule” (Reference Jackson, Pósch, Oliveira, Bradford, Mendes, Natal and ZaneticJackson et al., 2022, p. 123).
Pragmatic modes of justification: Circumspect trust in the public over the private and informal
People did not always explain their decision to turn to the courts in normative terms. Often it was articulated in terms of necessity and pragmatism. In theory, across Uganda, most people prefer minor crimes and civil disputes to be settled “locally,” through extended family discussions, clan elders, or the local court system. In practice, this option can be refused by the other party or can prove dubitable once the process takes hold. Many justified their decision to engage the state courts in relation to their inability or unwillingness to pursue justice through local courts, and their realistic expectations about the forms of justice and redress the state system could offer.
Sometimes people turned to the magistrates' court because they distrusted local authorities to rule fairly. This was explained in terms of local power balances. If one's social and kinship connections with councilors running the local courts were weaker than the other parties', a fair hearing was deemed unlikely. John, for example, was a middle-class professional involved in a long-running land dispute with Margaret, a struggling single mother who sold maize by the roadside. Their dispute centered on a small but strategic plot of land in downtown Gulu where she had established her market stall. Margaret claimed to own the land, but John insisted it was his, and had been grabbed by her after recent road construction disrupted old boundaries. Margaret referred the dispute to the local court, which ruled in her favor. John was convinced it was because: “I don't stay there, so they don't know much about me and were favouring her side more. I was not associating at their level. Sometimes they call us ‘rich people’.” John was a wealthier, educated male with professional status. Yet Margaret was embedded in a network of local relationships and knowledge. John believed that as a result, the LC system lacked impartiality: “they were too much on her side,” he complained. His only option, he felt, was to forward the case to the magistrates' court. He predicted that “she may say that man has bribed those people,” something he strenuously denied, and the magistrates' did indeed eventually rule in Margaret's favor.
A perception that local justice processes were too closely enmeshed in the everyday private lives of litigants, complainants, and the accused was widespread. Dennis, who was involved in a long-running land dispute believed his chances of fair resolution in the local courts were weak. The head of the local court (LC1) was a “clan brother” to the other party, and his own parents were long dead. He preferred the case to be arbitrated by the state. He explained this in terms of what was necessary and practical in his situation, rather than expressing any abiding faith in the institution of the magistrates' court. On balance, he placed more trust in the magistrates' court to rule impartially:
We are more inclined to trust the court and the state than the traditional system because we don't have our parents here, so when there is a problem that other clan gangs against us, so we trust the court will deliver us a fair ruling.
A pragmatic decision to turn to the magistrates' courts was usually based on an appraisal of the probity of local courts and the dynamics of the dispute in question. In criminal cases, this included the nature of the wrongdoing and the individual character of the alleged wrongdoer. Yet patterns were hard to predict. As one CSO employee working on justice issues explained, “it's really patchy at a local level, the degree to which family and local structures are working, and then if they are working, whether they are working in the interests of justice” (see also Reference WeeksWeeks, 2015). Their data showed that in more rural areas, often stereotyped as being most averse to formal justice processes, the adversarial state system was preferred in certain situations. Beyond concerns about the impartiality of local courts, state courts could adjudicate more definitively in civil cases, and enforce harsher punishment in criminal cases. With regards criminal cases, a state prosecutor explained: “people say, ‘let him first be remanded. This person has been bothering us for so long, we would rather see him jail and confined’.” For people of “stubborn character,” those who persistently created problems in the community, arrest, and prison were considered an effective means of restoring social harmony. People had not necessarily “internalized” a belief in the legitimacy of the courts. Rather they placed some “situational trust” in the criminal justice system's capacity to deal effectively with serial offenders (Reference BellBell, 2016; Reference LakeLake, 2014, p. 551).
Meanwhile, magistrates lamented the number of cases reaching the court that, in the words of one, were “simple, simple things that should have been dealt with by structures on the ground, like local courts.” A tension arose here between court-users and court agents. In seeking out state justice, court-users acknowledged the claimed authority of the court and its right to govern social order. Yet this was not always welcomed by judicial officers who expressed firm opinions about the kinds of disputes that should be heard in magistrates' courts, and those that should be resolved locally. Magistrates' admitted that many cases appeared in court due to inept or corrupt police officers and prosecutors. A broader source of concern, however, was public “ignorance of the law” and “dysfunctional” social relationships in post-war northern Uganda, which overburdened the court with cases as minor as theft of a neighbor's chicken, or a dispute over a tiny parcel of customary land. The charge that citizens compromised the court by over-using it suggests that far from avoiding state justice, as much of the literature implies, people wanted greater access to it.
Analyzing low success rates of alternative mediation in civil land cases offered further insight into citizens' insistence their case be heard in court, despite efforts by judicial officers to persuade them their problems did not belong there (see also Reference MerryMerry, 1990, p. 170; Reference MoultMoult, 2010). Mediation was understood as a local process, overseen by local authorities, and shaped by broader communal interactions in which knowledge and advice were exchanged (Reference Merry and SilbeyMerry & Silbey, 1984, p. 152). When that route was not possible, or had failed, the time for mediation had passed. People turned to the courts because they wanted the magistrate to decide which party should win and who should lose. There was little interest in disputes being mediated by third-parties, or as one lawyer termed them: “accredited mediators who do not understand the community…”:
…People have no interest in the court coming along and saying, we will offer you mediation: local people say, “why are you taking me back to that when we have already tried and failed? If the law is telling us we have to go to mediation again, then let us go, and we will tell them that we do not want it.”
Efforts by state agents to “delegalize” (Reference JacobsJacobs 1991) issues people believed should be arbitrated in the public realm illustrated a tension in how institutional purpose was claimed by court officials (“we should not be hearing those kinds of cases”) and how it was perceived by citizens (“this is an institution that can offer me a definitive resolution to my legal problem”). Magistrates' and court practitioners invoked relational dimensions of the dispute to try and maintain a boundary between the private and the public, but by the time a case reached the court, citizens were usually intent on transcending that boundary.
In sum, depending on the dynamics of the dispute in question, there were various scenarios whereby people placed circumspect trust in the state courts to resolve grievances and deal with offenders, without expressing much faith in the institution “writ large” (Reference BellBell, 2016, p. 326). First, when people calculated that local authorities may rule unfavorably because of nepotism. Second, circumstances where the community sought custodial sentences to remove persistent troublemakers from the neighborhood. Third, when local mediation of civil land cases failed and parties sought an adjudicated verdict. In all these cases, people engaged courts with some expectation of a positive outcome, rather than any faith in the court's procedural fairness or surety about the legitimacy of the state.
Tactical modes of justification: Legalized revenge and appropriation
So far, we see that despite chronic procedural problems, citizens still turned to magistrates' courts because they held normative ideas about the legitimate role of the state in regulating social order; and/or because particular dispute dynamics rendered the state a more trustworthy and effective arbiter than local alternatives. Sometimes these motivations overlapped but they could also be distinct. It was also the case, however, that corruption and transgressive norms could actively encourage people's engagement with magistrates' courts because they offered an opportunity to transact in banishment, revenge, and appropriation under the guise of legalism (Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020).
In Gulu, a striking proportion of criminal cases were linked to civil land disputes. The newly appointed Regional State Attorney, who dealt with appeals to the High Court, seemed overwhelmed:
All these cases…you will see there is murder, there is aggravated robbery, there is simple robbery here, there is defilement here. All of these are land cases. They are all related to land.
Common crimes like arson, malicious damage, assault, and trespass might be on the docket because of the length of time it took to resolve civil land cases. While many accusations were genuine, fabricated charges were not uncommon. Magistrates' explained that people were “abusing the court” by bringing “fake” charges in order to have an opponent arrested, creating significant leverage in the ongoing civil dispute. One lawyer described a typical scenario that we witnessed in various iterations: there is a dispute between two clans over some land, one clan is believed to be encroaching on the other clans' land. To “quicken the eviction,” the plaintiffs in the civil case might:
add in charges of criminal trespass, or malicious damage to property….or they come in and provoke a fight and see one person arrested and then they bring charges so the thing becomes bigger, and that person gets locked up for a long time.
CSO staff working on criminal justice issues in rural communities expressed concern about how many fabricated “petty” criminal cases were being brought to court. One social worker elaborated:
in the community you find maybe two families. So, there are land wrangles, or they are fighting over property, and one family might gang up on a member of the other family, and they might end up in prison.
A magistrate explained how the criminal case becomes a bargaining chip: “they tell you: if you move from here, we will release your son.” This is what happened to Dennis, who had been embroiled in a land dispute with a neighboring clan for 7 years. He was facing criminal charges of assault and said that a representative of the neighboring clan invented the charge “because of bad blood; because they say we are not people of this area. They pay the police and this is a normal thing. They did this as a way to get me from my land.”
Sometimes this was a straight-forward case of a wealthier party fabricating a charge and bribing the police and prosecution to bring a case. Joseph for example, was a young man accused of arson by an older, wealthier neighbor who also ran a business in the city. According to Joseph, when the IDP camps were disbanded, the local government announced there was land to be acquired and farmed in the area. Taking this opportunity, Joseph was subsequently accused of occupying land belonging to his new neighbor's father. When Joseph defended his right to the land, his neighbor allegedly set fire to a hut on his own property, framed Joseph for arson and: “automatically paid the police to arrest me…that man came with the police and pointed at me. They handcuffed me and took me to the cells. The whole thing was planned.” After spending a night in the cells, Joseph was taken to court but there was no hearing. Instead, the magistrate remanded him to prison, where he stayed for over 4 months. He would be summoned to court regularly during that period, only to be told on arrival: “no court,” and taken back to prison. His bail applications were refused on nominally administrative grounds, a common outcome in the magistrates' court for those who did not engage in practical norms. The state attorney told Joseph euphemistically that he was not “organized” for bail.
In relaying Joseph's case to a lawyer, his opinion was that the accuser sounded like an “archetypal land grabber.” Another explained how,
in town many people have money [and] they want to evict villagers if they have an interest in [their] land. So, they give money to the police, the police arrest, then they bribe the state attorney to sanction the file. He will then make a decision to sanction the file, even if there is not enough evidence.
Yet it was not just the wealthy who engaged such tactics. A common refrain was that one needed either “money or connections” to “benefit” from the court system. In practice though, vast amounts of money were not necessary, and connections did not need to be first-rate. Families might pool resources to raise the money needed to engage in legal processes and their main point of contact was more likely to be a police officer, prison warden, or court clerk than anyone with more senior status. These tactics could be effective, but the opportunity cost was often high, and the outcome was not always predictable, a reminder that the life of the dispute is a social phenomenon in which decisions over escalation, de-escalation, and resolution cannot be reduced to economic rationalization (Reference Merry and SilbeyMerry & Silbey, 1984, p. 157).
Interviewees suggested that these dynamics affected young men and boys in particular, drawing attention to the use of simple defilement charges. On a visit to Gulu Juvenile Remand Home, 63% of inmates were detained on these charges, defined in Ugandan law as the performance of a sexual act with a person aged between 14 and 17 years. If both parties are below the age of 18, then both can be accused, and both can be victims. Remand home staff stated that most boys in the facility were accused of having sexual relations with their girlfriends. These observations resonated with a wider critique of how simple defilement laws have functioned in Uganda. In Central-Eastern Uganda, for example, Reference ParikhParikh (2012, p. 1774) found that “the average age of men charged with defilement was twenty-one and many were believed to be boyfriends in consensual sexual liaisons with the alleged victims.” She suggests that the simple defilement law was being used by older men to discipline younger, poorer men and assert property rights over their daughters (see also Reference Hilhorst and DoumaHilhorst & Douma, 2018; Reference Veit and BieckerVeit & Biecker, 2022).
Defilement was one of the most common crimes to be heard in the Gulu Magistrates' Court. Local civil society staff agreed that these were difficult cases. The defilement law had originally been advocated for by human rights organizations to protect girls from predatory “sugar daddies,” “pedophiles,” and families arranging child marriages (Reference ParikhParikh, 2012, p. 1774). But the charge was being used too often, one CSO staff member said, “as a property law that disgruntled families are using to batter one another with.” This meant that the very real need to provide protection and redress against sexual violence for victims, on their terms, was being undermined. In two cases we followed, the young men accused alleged that the charges had been reported or fabricated by neighbors to gain leverage in ongoing land disputes. A magistrate recognized this kind of scenario:
I would say, 80% of criminal cases are land related. Like defilement, but no, it's actually land. Someone plants a girl there and they come up with a tailored, you know, a very wonderful story, but it is a sham, it is a total sham.
Similarly, at the remand home, staff expressed concern about simple defilement cases “that do not warrant bringing children here.” They also noted a trend whereby “when you talk to the children, some of them have not committed any offence, but the problem is arising from a land wrangle.” These children, we were told, are “victims of circumstance.”
On one hand then, there is a widespread sense in Gulu that simple defilement laws were being leveraged to “reinforce rather than challenge the patriarchal structures that planners sought to transform” (Reference ParikhParikh, 2004, p. 86). On the other, the common perception that this law was being misused may well mean that victims of sexual violence seeking redress in the courts face added barriers, as court officials and/or perpetrators may wield the discourses above against them to undermine their claims. In other words, the belief that tactical court cases exist can have dispute-specific and broad, structural implications.
In a context in which disputes were usually regarded as communal and interpersonal, rather than as “legal” issues, plaintiffs and accusers often wanted to drop cases if they were failing to serve desired social ends. For judicial professionals this was evidence of people's “ignorance” of the system. In criminal cases, one prosecutor was irritated that: “after some time, people will come to us with their arguments written down, that we don't want to continue with the court, we have resolved our case.” She would patiently explain that they may have forgiven the alleged crime perpetrated against them, but “the state has not forgiven that person.” The disconnect between official legal procedure and lay understanding chimes with seminal accounts of Reference MerryMerry (1990) and Reference Conley and O'BarrConley and O'Barr (1990) on how misunderstanding and confusion shape the experience of justice for citizens. At the same time, citizens were demonstrating familiarity with the practical norms that might allow for such an outcome.
What about those on the receiving end of fabricated charges? Going back to Joseph, the young man accused of arson by his wealthier neighbor: his understanding of the process he was caught up in was not dissimilar to others at the wrong end of “fake” charges. Bribes and delays were blamed on the accuser, the police, and the prosecution. Joseph was angry the police never bothered to investigate and believed the state attorney was “picking money” from his accuser to delay the case and keep him in prison. Nevertheless, he defended the institution of the court: “the court is not so bad,” he said, “if there is no corruption, I will be innocent.” He knew full well how the system that he purported some faith in could be manipulated with very real consequences. After 4 months on remand, Joseph secured bail. Giving some insight into how the ebb and flow of court cases impacted everyday relationships, he said of his neighbor: “we are together now, this process has taken him nowhere. We are still together.”
CONCLUSIONS
We started this paper outlining a puzzle: in northern Uganda citizens are turning to lower state courts to resolve minor criminal and civil cases against the backdrop of widespread perceptions of corruption and dysfunction in the justice sector. Our study shows why, even under inauspicious conditions, citizens choose to pursue cases through the magistrates' courts. Modes of justification existed on a continuum from the normative, to the pragmatic, to the tactical, highlighting significant variation in legal socialization and orientations toward the law and legal authorities in northern Uganda. Theoretically, this case helps expand our understanding of how concepts of procedural justice, institutional trust, and legitimacy operate in an area of limited statehood, where lower state courts are difficult places to achieve justice.
At one end of the spectrum were moral justifications for court engagement, rooted in state imaginaries that acted as a powerful source of empirical legitimacy. Prior to engaging the courts, people predicted a struggle with nefarious judicial officers and long delays. Yet this did not deter engagement and even when bad interpersonal experiences materialized, normative ideas about the “rightfulness” of the court as an institution were remarkably abiding. We should not assume however that all those expressing normative justifications for court engagement had been “socialized” into liberal democratic cultures of accountability (Reference Lake, Muthaka and WalkerLake et. al, 2016, p.539). While many invoked liberal ideas premised on the rule-of-law and fair treatment; others held moral ideas about the state courts that valorized alternative visions of social order “embedded” in Uganda's authoritarian political culture (Reference Vokes and WilkinsVokes & Wilkins, 2016).
This demonstrates how the relational character of legitimating norms can vary widely both within and across different socio-political contexts. According to PJT, positive encounters between individuals and legal authorities shape assessments of the legitimacy of legal institutions. Yet in northern Uganda, individual encounters—which were often negative—were not central to people's legitimacy assessments. Instead, when people expressed moral justification for conferring authority upon the courts it was premised on a belief that the institution of the law and courts embodied values and standards that were inextricable from their identity as good citizens (Reference VerheulVerheul 2016). In Gulu then, empirical legitimacy perceptions were also relational but best understood as a “social” rather than individual acceptance of the right to rule which had “multiple sources,” and which also “regulate[d] ongoing debates” about the probity of state agents and their exercise of power (Reference LentzLentz, 1998, p. 63; Reference Risse and StollenwerkRisse & Stollenwerk, 2018, p. 404).
These dynamics also raised further questions about the causal relationship between legitimacy perceptions, legal compliance, and the “duty to obey” that are central to PJT models (Reference Jackson, Pósch, Oliveira, Bradford, Mendes, Natal and ZaneticJackson et al., 2022; Reference Nagin and TelepNagin & Telep, 2017, Reference Nagin and Telep2020). Even where people expressed moral justifications for court engagement, it was difficult to rule out the possibility that their compliance with the law and courts also emerged from fear of state violence (Reference TankebeTankebe, 2013, p. 106). Thus while it could be argued that “right to power” and “duty to obey” components of legitimacy only make sense as a combined measure, empirically it is helpful to think of them as separate dimensions of the concept, if only to help us better understand the mechanisms that link them in areas of limited statehood and beyond (Reference JacksonJackson, 2018, p. 161).
While some respondents described their motivation for court engagement in terms of legitimacy perceptions, others described more pragmatic calculations. Here, people might hold broadly cynical attitudes toward legal authorities and the courts, while also placing circumspect trust in them to handle particular disputes more effectively than local courts or informal processes. For instance, those who felt disconnected from kin-based networks regulating the local courts believed the state courts would be more neutral. Further, while scholarship on legal pluralism across Africa posits popular preference for restorative justice mechanisms based on customary law, the more adversarial state justice system clearly offered forms of resolution that people found highly effective in particular circumstances. The magistrates' courts delivered custodial sentences for regular troublemakers in the community, and “winner takes all” adjudication in civil disputes averse to mediation. Both offered the possibility of restoring social order through corrective measures that were retributive in nature and not available through local courts or other nonstate actors. Yet here we observed clear a conceptual distinction between perceptions of legitimacy and trust expectations. People could express circumspect trust in the coercive authority of the courts to solve their particular problem without believing that the courts were always, or even typically, the appropriate forum for the pursuit of justice.
Finally, we identified how widespread transgressive practices at the court, and a political culture sanctioning impunity for corruption in public office, created a “permissive space” for citizens to use legal processes tactically for personal and communal gain and advantage (Reference Cooper-Knock and OwenCooper-Knock & Owen, 2015, p. 360; Reference Cooper-Knock and MacdonaldCooper-Knock & Macdonald, 2020). The supply of state actors and judicial officers willing to engage in improper conduct was high enough to meet the demand for fabricated charges, and the costs involved were not necessarily prohibitive for the less wealthy and educated. Paradoxically perhaps, while many people had been socialized into viewing the law and legal authorities as procedurally unjust, this could actually motivate engagement with the courts. A lack of procedural justice intimates power, and people-oriented themselves toward power when it helped them harm opponents or appropriate material gains. It was quite striking that those who used the courts for tactical ends were the least willing to fully accept the authority of the court to arbitrate and govern. This mostly manifested itself in people demanding that criminal cases be dropped when they were no longer useful; or failing to maintain cooperation with the courts in civil cases that had been resolved in other ways.
The three core modes of justification for court engagement were apparent across varied intersections of class, age, rural/urban location, and gender. Future studies could fruitfully explore how best to make sense of the variation in modes of justification for court engagement in areas of limited statehood like northern Uganda. This was a case study using a relatively small sample, but it reveals potential for further work in Africa and beyond using this analysis. Our findings challenge narratives which suggest that people living in areas of limited statehood prefer to avoid state institutions and state agents in their justice decisions. This is an important agenda for future research: looking beyond widespread perceptions and experiences of procedural irregularities to the reality of court use demonstrates that despite being a deeply problematic site for achieving justice, the lower state courts can evidently play a legitimate and/or useful regulatory role in the broader lives of disputes and struggles for social order and social control.
ACKNOWLEDGMENTS
The authors would like to thank Dorothy Atim, Jacky Atingo, Raphael Kerali, Joseph Okello, and Arthur Owor for excellent research assistance on this project. We are extremely grateful to everyone who generously gave their time to participate in this research. We would also like to thank colleagues at the Economic and Social Research Council (ESRC) funded Centre for Public Authority and International Development (CPAID), three anonymous reviewers, and the editors for such helpful comments on earlier drafts of this article. Our research was generously funded by a British Academy/Leverhulme Small Grant (SG150947) and the Centre for Public Authority and International Development (ES/P008038/1) and (ES/W00786X/1).
Funding information British Academy, Grant/Award Number: SG150947; Economic and Social Research Council, Grant/Award Numbers: ES/P008038/1, ES/W00786X/1
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