Judicial impartiality questioned as life sentence for possession of ivory reduced to 6.5 years at Uganda’s High Court

Shamini Jayanathan is a British barrister and director of Arcturus Consultancy Ltd, a criminal justice advisory service based in Kenya. She is an associate tenant of Foundry Chambers, Chancery Lane, London.

In November 2022, I commented on the sentence of Pascal Ochiba who, at the age of 63, received a life sentence from the specialist wildlife court in Uganda for possession of less than 10kg of ivory.

Although not his first conviction, the prosecution did not allege that he was part of any organised crime group. However, at sentencing the magistrate stated: “… a fine will not cause any pain to the convict. It will not be a sentence to a convict linked to transnational wildlife traffickers” and further observed he was “likely to mentor little ones into becoming wildlife traffickers”.

Gladys Kamasanyu, the trial judge – and founder of the NGO Speak Out for African Animals – imposed the maximum sentence available to her under the law. In a country where life means life, Pascal Ochiba was going to die in prison.

Ivory consignment seized in Uganda, for illustrative purposes only (c) URA

The concerns I raised in 2022 centred around the lack of any consistency in sentencing – an issue in many jurisdictions. Without guiding principles that would force tribunals to apply objective and reasonable criteria, the deterrent effect of such sentences would be limited. In September 2023, the Kenyan judiciary acknowledged the issue by rewriting and issuing a new guided approach to sentencing for all criminal offences that, if applied, will start to inject some much need certainty into proceedings.

But back to Ochiba. He would have been forgotten had it not been for the Kampala law firm KTA Advocates and Blair Michael Ntambi, an associate lawyer who offered his services pro bono. Inspired by the question of judicial independence and impartiality that he felt was called into question in this case, Mr Ntambi visited Ochiba at Luzira Maximum Security Prison and determined that not only was he inadequately represented at trial, but that the sentence itself was deeply flawed.

Formal grounds of appeal were submitted. Mr Ntambi argued that that the magistrate had sentenced on the basis of facts never actually alleged as part of the prosecution case and that the sentence was manifestly harsh and excessive. He also raised the issue of the conflict of interest inherent in having a magistrate in a specialist wildlife court also being the founder and CEO of a not-for-profit where her tough stance on wildlife crime was often cited in her speaking engagements as both a judicial officer and a representative of the NGO.

Written with restraint and even offering a commendation of the magistrates’ efforts in this sector, the pleadings cited Section 2.4 of the Uganda Code of Judicial Conduct: “A Judicial Officer shall refrain from participating in any proceedings in which the impartiality of the Judicial Officer might reasonably be questioned” and that ‘under 4.9 of the Bangalore Principles, as reflected in Section 4 .3 of the Uganda Code of Ethics, “a judicial officer shall not use the prestige of judicial office to advance private interests”.

It went on to state: ‘It is not suggested that the learned trial magistrate is purposefully doing so, but a reasonable observer would conclude that by virtue of her role as the presiding judge of a wildlife specialist court in Uganda, her other role as a founder of a NGO whose mission is to advance wildlife and animal rights, and which relies on donor funding, is incongruous”.

The appeal was heard at the High Court in Kampala on 13 March 2024. Normally, in an appeal the appellant and the prosecution would present their arguments and a judgment would follow. In this case, both sides were invited by the High Court Judge Gedenya Paul Wolimbwa to decide themselves what sentence would be appropriate. ’Fifteen years!’ offered the prosecution. Mr Ntambi resisted, believing he was in the right.

After some intense negotiations, a number was reached without the court having to address all of the grounds raised in the appeal submissions.

“Whilst we were unable to establish jurisprudence on the issue of judicial bias, something that inspired us to handle this matter pro bono, we remain committed to advocating for a robust legal framework governing fair trial in Uganda,” said Mr Ntambi after the hearing.

Pro bono lawyers are a rare and precious find. KTA Advocates is a primarily commercial set of chambers focused on tech, media, intellectual property and construction law. However, in systems that do not have strong safeguards in place to protect against arbitrary and inconsistent practices, it is up to the Bar to sometimes step into the fray to advance key principles and safeguards, even if it doesn’t pay.

Were it not for the headlines made in this case – ironically, because of the nature of the court and the profile of the trial magistrate – Mr Ochiba would still be languishing in prison, unable to argue for himself.

Mr Ochiba’s sentence was reduced to 6.5 years, so he won’t be home any time soon. Meanwhile, the bigger questions – judicial impartiality, consistency in sentencing and even proper funding for public defenders – remain unsolved.

Mr Ochiba got lucky.  Many others like him won’t.