Access to justice: analysis on the standard and burden of proof in trial of sexual and gender-based violence cases in Uganda

Abstract

Sexual and Gender Based Violence (SGBV) persists due to entrenched societal norms and practices, as well as flaws in legal processes, rather than a lack of legislation. The general objective of the study was to examine the effect of the evidential burden in court trial on access to Justice by survivors of sexual and gender based violence (SGBV) in Uganda. This study was justified on several grounds, reflecting its relevance and necessity in addressing critical gaps and challenges within the Ugandan and other judicial systems as there exists a significant gap between legal theory and its practical application in SGBV cases. While legal principles such as the burden of proof are well-established, their application in the context of SGBV often encounters practical challenges, including limited evidence and victim testimonies. This study sought to bridge this gap by examining how this legal concept is applied in practice and identifying potential discrepancies that can be improved upon to enhance access to justice by SGBV victims. The Researcher used qualitative methods of data collection from a cross section of respondents 22 out of 30 that were planned from: victims, Uganda police, courts/judiciary, and NGOs/Civil/human right activist’s offices. The findings were supported by secondary data and relative plausibility theory. The study found out that whereas there is an existent and adequate international and domestic legal framework, victims and survivors still have inadequate information in respect to access to justice, and this makes it difficult for them to navigate the justice system that has court practices by judicial officers that frustrate SGBV court case trial processes and outcomes. Consequently, they have a high burden to defend their testimonies and adduce evidence supporting their claims sometimes unsuccessful and are left re- traumatized. The study recommended that Uganda benchmarks other countries to assess the effectiveness and adequacy of the standard of proof used variedly in prosecuting crimes of SGBV with the view of reviewing and lessening the burden on part of the prosecution and victims and survivors of SGBV. The study also recommends that Uganda implements more special court sessions and procedures for SGBV cases, ensuring that SGBV cases are handled in a gender-responsive and victim-friendly manner. Establishment of specialized courts and tribunals, application of victim-centred approaches, training prosecutors and judicial officers, emphasizing and facilitating expert testimony and evidence-based practices, provision of support services (counselling, healthcare, shelter), encouraging community awareness and education, undertaking policy reforms and legislative changes and increasing funding and resources to dispose of SGBV cases in a timely manner.