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Justice Stephen Mubiru Clarifies the Law on Civil Imprisonment

What is Detention for a Civil Wrong?

Detention in civil prison is competent for failure to pay monetary awards, fines for contempt of court and for willful failure to perform a decree that orders specific performance (a decree ad factum praestandum) where court is satisfied that the non-performance is willful.

 There are two reasons why people are detained for civil wrongs; 

1. It enables the decree-holder or creditor to the fruits of the decree passed in his or her favor 

2. It protects the judgment-debtor who is not in a position to pay the dues for reasons beyond his control. 

If the judgment-debtor has means to pay and still he refuses or neglects to honour his obligations, he can be sent to civil prison. 

 Article 11 and 21 of The International Covenant on Civil and Political Rights (ICCPR) to which Uganda is signatory provides that no one shall be imprisoned merely on grounds of inability to fulfil contractual obligations and that no one shall be deprived of his life or personal liberty except in accordance to procedure established by law. This places a duty on the State not to incarcerate except as provided for by law provided it is fair, just and reasonable in its procedural essence. 

Although not domesticated, by virtue of the law of state responsibility for international treaties, the ICCPR is arguably part of the Ugandan law, or alternatively, until the Municipal Law is changed to accommodate the Covenant and because of its binding provisions. At the very least it serves as a source of persuasive standards that ought to influence the interpretation and application of legislation. Moreover, the foreign policy objective under state policy No. xviii and Article 287 of The Constitution of the Republic of Uganda, 1995 promotes the respect for international law and treaty obligations. 

 When should one be detained for a civil wrong? 

1. Where one is able but willfully refuses to pay a debt or obey a decree of court requiring such specific performance 

 Justice G.B.M Kariuki in the case of the Kenyan High Court, R.P.M v. P.K.M, Nairobi Divorce Cause No. 154 of 2008 (unreported) held that; 

No one should be sent to civil jail for inability to pay a debt. It would be morally wrong to do so. It would arguably also amount to discrimination against the have-nots. And it would also make no sense to send to civil jail a person who is unable to pay. That would be malicious. In any case, it would amount to throwing away good money after bad for the creditor. Civil jail is for those who refuse to part with their money to pay debts. 

Similarly, in the case of Chinamora v. Angina Furnishers (Private) Ltd [1997] 1 LRC 149 (Supreme Court of Zimbabwe) it was held that a court should not order civil imprisonment if the debtor proved inability to pay. The court should order imprisonment only if it is established positively that the debtor could but would not pay. 

 Furthermore, In the First National Bank v. Julia Moseneke and Bank Gaborone v. Thabang Mosiny (consolidated) Justice Dr. Zein Kebonang, of the Botswana High Court at Gaborone argued that this method of execution should be abolished altogether because it serves no practical purpose except a degrading and humiliating treatment to the debtor. Such treatment is not limited only to physical acts but to any act of a certain level of severity which lowers a person in rank, position, reputation or character. Where it is applied, the high value of human dignity and the worth of the human must always be kept in mind. 

To commit a debtor to prison who through poverty is unable to satisfy the judgment debt is contrary to the purpose of civil imprisonment which is to coerce payment. Its only real effect on an impoverished debtor is that of punishment. It is a punishment that can be avoided by a debtor who is able but unwilling to pay, for satisfaction of the judgment remains within his power. But it becomes mandatory against one without the means to pay. It discriminates between the one and the other. Poverty-stricken judgment debtors should not be consigned to jail. 

2. Where there is an element of bad faith beyond mere indifference to pay some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it 

This provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here, a consideration of the debtor’s other pressing needs and straitened circumstances will play prominently. 

When applied to honest debtor’s incapable of paying dues for reasons beyond their control they should not be detained as it denies the creditor a right to be paid and the debtor the right and opportunity to pay. The creditor must therefore satisfy the Court that the debtor is guilty of willful refusing or culpably neglecting to pay the debt. Mere omission to pay should not result in arrest or detention of the judgment-debtor. Before ordering detention, the court must be satisfied that there was an element of bad faith, not mere omission to pay but an attitude of refusal on demand verging on demand to disowning of the obligation under the decree. This is enunciated by the dicta of Krishna Iyer, J. in Jolly George Verghese v. Bank of Cochin, (1980) 2 SCC 360; 1980 AIR 470, 1980 SCR (2) 913. 

In conclusion, Order 22 rule 37 (1) of The Civil Procedure Rules provides that court has the discretion to make an order disallowing an application for the arrest and detention of a judgment debtor and directing his or her release where it is satisfied that the judgment debtor is unable, from poverty or other sufficient cause, to pay the amount of the decree. The aspect of deliberate refusal or negligence has to be necessarily established by the decree-holder to the satisfaction of the executing Court. The direction for arrest is an extreme consequence that can be resorted to if there is adequate proof of refusal to comply with a decree inspite of the fact that the judgment-debtor is possessed of sufficient means to satisfy the same. Civil imprisonment should be a remedy of last resort when all other methods of debt collection have failed. In any event, a judgment debtor once discharged from jail, cannot be arrested a second time in execution of the same decree.