Is it fair to throw debtors in jail?
Oct 27, 2004
When Engineer Kazibwe was arrested and imprisoned for failure to repay a bank loan in 2002, I felt there was something wrong with our law.
When Engineer Kazibwe was arrested and imprisoned for failure to repay a bank loan in 2002, I felt there was something wrong with our law.
I pointed out in this column that the arrest and imprisonment of people for civil debts was a violation of human rights and that it was inconsistent with Article 11 of the International Covenant on Civil and Political Rights (ICCPR), (see Kazibwe Arrest was Unlawful, The New Vision, May 9, 2002).
The chairman of the Law Reform Commission responded and disagreed with me (see Law is Fair to Judgement-debtor, The New Vision, May 30, 2002).
In response to Uganda’s initial report to the UN on the implementation of the ICCPR, the UN Human Rights Committee has now concluded that Uganda’s continued imprisonment of judgement-debtors is a breach of Article 11 of the ICCPR and recommended abolition of the practice.
Subsequently, the Uganda Human Rights Commission, in its 2003 Annual Report, launched on October 18, has brought this recommendation to the attention of the Government.
The recommendation comes in the wake of our courts sending many people to prison for inability to pay debts. Other than Eng. Kazibwe, Bbaale Francis, the celebrated news anchor on UTV, spent nights in Luzira Prison just because he was a guarantor to someone who borrowed money and failed to pay. Joy Nandaula of the Electoral Commission, and recently Ofwono Opondo’s wife, nearly found themselves in prison.
There are many other ordinary Ugandans languishing in prison for failure to pay debts.
Article 11 of the ICCR states: “No one shall be imprisoned merely on the grounds of inability to fulfill a contractual obligationâ€. Uganda ratified the Convention in 1995. Some of the obligations that come with the ratification include abiding by its articles and enshrining its provisions in national laws. Section 40 of the Civil Procedures Act provides that if a person does not fulfill a contractual obligation, after the aggrieved party has instituted a civil suit, court may order the detention of the debtor. The Civil Procedures Rules (Statutory Instrument No. 65-3-CPR) goes ahead and gives the courts the procedure of how to go about the imprisonment of a judgment debtor.
The Law Reform Commission argued that the Civil Procedure rules emphasise imprisonment of people who refuse to pay, not those who are unable to. However, looking at all the cases involving civil imprisonments, the debtors who end up in prison are unable to pay. Eng. Kazibwe was bailed out by President Yoweri Museveni, and Bbaale Francis by Patrick Kasulu and other friends. In all the other cases, it is friends who fundraise to save the debtors. I doubt whether someone can choose to go to prison over a debt when he has the money to pay.
If we put the human rights argument aside, is it fair to imprison someone on a civil debt? Is it fair that people who are friends to the extent of lending each other money should end up throwing each other to prison?
In civil transactions, especially bank loans and money lending, there is a collateral security. This security can be sold to recover the money in case the debtor fails to pay. There is also the guarantor, who can be forced to pay in case the debtor absconds.
Then there is the remedy of attachment of the debtor’s property or salary. Why can’t we resort to these options rather than imprisonment? And, ridiculously, after serving the jail term, the debtor is still required to pay the debt!
Having ruled that these provisions in Uganda’s laws are incompatible with our international human rights obligations, the UN Human Rights Committee has recommended that Uganda should consider implementing these recommendations by April 1, 2008, when its periodic report will be due.
Ends
I pointed out in this column that the arrest and imprisonment of people for civil debts was a violation of human rights and that it was inconsistent with Article 11 of the International Covenant on Civil and Political Rights (ICCPR), (see Kazibwe Arrest was Unlawful, The New Vision, May 9, 2002).
The chairman of the Law Reform Commission responded and disagreed with me (see Law is Fair to Judgement-debtor, The New Vision, May 30, 2002).
In response to Uganda’s initial report to the UN on the implementation of the ICCPR, the UN Human Rights Committee has now concluded that Uganda’s continued imprisonment of judgement-debtors is a breach of Article 11 of the ICCPR and recommended abolition of the practice.
Subsequently, the Uganda Human Rights Commission, in its 2003 Annual Report, launched on October 18, has brought this recommendation to the attention of the Government.
The recommendation comes in the wake of our courts sending many people to prison for inability to pay debts. Other than Eng. Kazibwe, Bbaale Francis, the celebrated news anchor on UTV, spent nights in Luzira Prison just because he was a guarantor to someone who borrowed money and failed to pay. Joy Nandaula of the Electoral Commission, and recently Ofwono Opondo’s wife, nearly found themselves in prison.
There are many other ordinary Ugandans languishing in prison for failure to pay debts.
Article 11 of the ICCR states: “No one shall be imprisoned merely on the grounds of inability to fulfill a contractual obligationâ€. Uganda ratified the Convention in 1995. Some of the obligations that come with the ratification include abiding by its articles and enshrining its provisions in national laws. Section 40 of the Civil Procedures Act provides that if a person does not fulfill a contractual obligation, after the aggrieved party has instituted a civil suit, court may order the detention of the debtor. The Civil Procedures Rules (Statutory Instrument No. 65-3-CPR) goes ahead and gives the courts the procedure of how to go about the imprisonment of a judgment debtor.
The Law Reform Commission argued that the Civil Procedure rules emphasise imprisonment of people who refuse to pay, not those who are unable to. However, looking at all the cases involving civil imprisonments, the debtors who end up in prison are unable to pay. Eng. Kazibwe was bailed out by President Yoweri Museveni, and Bbaale Francis by Patrick Kasulu and other friends. In all the other cases, it is friends who fundraise to save the debtors. I doubt whether someone can choose to go to prison over a debt when he has the money to pay.
If we put the human rights argument aside, is it fair to imprison someone on a civil debt? Is it fair that people who are friends to the extent of lending each other money should end up throwing each other to prison?
In civil transactions, especially bank loans and money lending, there is a collateral security. This security can be sold to recover the money in case the debtor fails to pay. There is also the guarantor, who can be forced to pay in case the debtor absconds.
Then there is the remedy of attachment of the debtor’s property or salary. Why can’t we resort to these options rather than imprisonment? And, ridiculously, after serving the jail term, the debtor is still required to pay the debt!
Having ruled that these provisions in Uganda’s laws are incompatible with our international human rights obligations, the UN Human Rights Committee has recommended that Uganda should consider implementing these recommendations by April 1, 2008, when its periodic report will be due.
Ends