UCU Moots: 2010

Rules for 2010 Intra-UCU Moot Competition:

Teams:

Each team shall be comprised of at least two and no more than three members.

All team members must be enrolled in UCU’s Faculty of Law in 2010.

All team members must be from the same year of study. Team members are not required to be enrolled in the same intake sessions.

Teams shall be registered when they file their briefs electronically.

Schedule:

Briefs should be submitted in electronically to Brian Dennison at bdennison@law.ucu.ac.ug by May 13, 2010. Late briefs will only be accepted through May 20, 2010. Please make sure you receive confirmation within 48 hours of filing your brief. If you do not receive confirmation please follow up to inquire as to the status of your filing.

Teams that have been selected to compete in the oral rounds will be posted at the Faculty of Law and on the UCU Moot blog at http://ucumoots.blogspot.com/ by May 25, 2010 .

The oral competition will be scheduled to take place some time in June of 2009.

Briefs:

In order to compete in the oral rounds of the Intra-UCU Moot teams are required to file a single brief on behalf of either the Petitioner or Respondent.

The brief shall consist of a title page, a table of authorities, a concise statement of facts and proceedings (not to exceed 3 pages in length), a legal argument section, and a short prayer of relief. The legal argument should make up a majority of the brief.

The brief must be typed, and double-spaced. The minimum font size is 12 point.

The legal argument section may not exceed 25 pages. There is no minimum length.

The names of all team members and their year of study should be listed on the top corner of the first page of the brief and at the end of the brief on a by-line.

Scoring of the Briefs:

The briefs will be scored on the following grounds:

Writing Style and Organization – 20 Possible Marks
Legal Analysis and Application of Law to Facts– 20 Possible Marks
Compliance with Instructions – 10 Possible Marks

There is a 5 mark reduction for each day that the brief is filed late. No briefs will be accepted after 3 April, 2009.

Oral Rounds:

The teams with the four highest scored briefs in each year of study will be permitted to compete in the oral rounds. If there are four briefs or less than four briefs submitted for any year of study, all teams that have submitted briefs in that year of study will advance to the oral rounds with the highest scoring brief receiving a bye in case there is an odd number of entries.

The teams from each year of study will compete against each other to determine the winning team from that year.

The four teams from each year of study will compete against each other for the title of Intra-UCU Champion.

Each Oralist in the Oral Rounds will be scored as follows:

Knowledge of Law: 20 possible marks
Application of the Law to Facts: 20 possible marks
Ingenuity and Ability to Answer Questions : 20 possible marks
Style, Poise, Courtesy and Demeanor: 20 possible marks
Organization: 20 possible marks

In the first two rounds, the team with the highest brief score will get to choose which side it wants to argue.

In the final two rounds the side to be argued by each team will be determined by coin flip.

Procedural Posture

This is a Constitutional Petition filed in the Constitutional Court of Uganda.
brought under Article 137(3) of the Constitutional of the Republic of Uganda.

The Parties

A. The Petitioner

Lombaba Mark

B. The Respondent

The Attorney General

Factual Background:

Lombaba Mark was born in Lombo District (fictional). He is a member of the Lombobi tribe (fictional). The actual date of his birth is unknown.

At a very young age Mark was dropped on his head. He experienced great swelling and was never the same according to his parents. However, Mark was never taken to the hospital and he was never diagnosed with any condition prior to enrollment in school.

The Education of Lombaba Mark:

Later Mark’s family moved to the Fonzi district where he was enrolled in Martyrs’ Fire Primary School. His enrollment papers are the first written documents that speak to his age. According to his initial school enrollment Mark was “est. 6 years old” as of the recorded date of enrollment of August 22, 1996.

While attending Martyrs’ Fire it became clear that Mark had developmental delays and disciplinary issues. Mark’s P-2 teacher noted in a progress report submitted to Mark’s parents that Mark “appeared to have cognitive difficulties” and “did not respond well to instruction.” The P-2 teacher labeled Mark as “intellectually challenged” and “developmentally disadvantaged.” After this educational assessment Mark was referenced to a psychologist who diagnosed Mark’s condition as Mild Mental Retardation. As time went by Mark was able to make moderate progress and he reached P-6 with only limited accommodations in the classroom. However, he struggled greatly with the math concepts covered in P-6 and stopped attending school out of frustration. He began herding goats and working on a small plot of land for his father.

The “courtship” and death of Nakariisu Rebecca

In 2007, Lombaba Mark became interested in a girl in the village named Nakariisu Rebecca. Nakariisu was only eleven years of age at the time.

Mark’s initial efforts to approach Nakariisu were rebuffed by Nakariisu’s father. The father did not want his daughter involved with a man young man with limited metal faculties. The father also refused on the grounds that Mark was from a “backwards tribe.” He said that Nakariisu could only marry a Mufonzi.

In September of 2008 Mark and three friends kidnapped Nakariisu and took her to Mark’s ancestral village in the Lombo. Mark kept Nakariisu locked up in a small hut on his uncle’s land. There Mark ritually circumcised Nakariisu against her will with the help of his friends.

Pursuant to the customs of the Lombobi, any girl over the age of 10 years of age can be married as long as the she has undergone ritual circumcision. Marriage among the Lombobi does not require the consent of the daughter’s father or the daughter as long as the husband agrees to pay the bride price that his village elders deem appropriate.

Mark presented Nakariisu to his tribal counsel for a valuation ceremony. The tribal counsel assigned Nakariisu the value of 6 goats. Mark told the tribal counsel that he had enough goats to meet the bride price and that he would deliver the goats to Nakariisu’s father upon his return to Fonzi District. The tribal counsel then granted Mark permission for Mark to marry Nakariisu in a traditional Lombobi ceremony.

Mark and Nakariisu were married in accordance with Lombobi custom on 1 October, 2008 in Mark’s ancestral village in Lombo. The ceremony was performed by a tribal healer. After the ceremony Mark initiated sexual intercourse with Nakariisu. Nakariisu became pregnant with Mark’s child immediately after the conjugal relations began with Mark.

On 15 December, 2008 Nakariisu’s father arrived in Mark’s tribal village and found his daughter. He took her back to his home. The girl relayed the events that took place in the village.

Mark came to the father’s house a few months later and attempted to present the father with the six goats for bride price. The father said he would not sell his daughter for anything less than 50 head of cattle and that we would not give his daughter to anyone who was not a member of the Mufonzi tribe. He then threatened to kill Mark if Mark did not leave his land right away.

On 20 June, 2009 the Nakariisu and her baby died in child birth. The treating obstetrician said the cause of the death for the mother and child were infections caused by the ritual circumcision combined with pregnancy complications. In his anguish, Nakariisu’s father reported what had happened to his daughter to local police.

Criminal Charges and Plea Hearing:

On 1 July, 2010 Mark was charged with aggravated defilement, felony assault and manslaughter. Mark was arrested and kept in Luzira Prison as he awaited a hearing date. A plea hearing was set for 1 December, 2009. During his plea hearing Mark was represented by counsel. Counsel had never met with Mark prior to the date of the plea. On meeting with Mark at the High Court, counsel sensed that Mark had some mental deficiencies. However, counsel did not raise mental incapacity at the time of the plea and did not question the Court’s finding that Mark was competent to enter a plea. At the time of the plea, the State also tendered the initial enrollment form to Martyr’s Fire School in to the record in order to prove that Mark was at least 18 years of age at the time of the offense. The enrollment form was tendered without objection and no additional evidence was offered regarding Mark’s age.

Sentencing Proceedings:

Mark was sentenced on 15 January, 2010. Prior counsel for Mark was present at the sentencing hearing. Based on his prior meeting with Mark, counsel performed some limited research on Mark’s mental capacity. Counsel located a primary school teacher who taught Mark in P-3. The teacher offered testimony at Mark’s sentencing hearing. This teacher testified that Mark was mildly retarded and was a very defiant student. She also testified that young Mark often made very poor decisions such as chewing on his papers and falling out of his chair on purpose to get a laugh from the other students. She said that Mark also had difficulty going to the bathroom in a timely manner and needed to be prompted repeatedly. She testified that she knew that Mark had been dropped on his head as a small child and thought that might have something to do with his mental deficiencies. She testified to the authenticity of P-2 progress report and the psychologist’s diagnosis of MMR. Both documents were tendered into into the record without objection. The teacher asked that the Court be lenient because Mark was really nothing more than a “big child.”

The only evidence the State at the time of sentencing was the testimony of Namasiiru’s father. The father offered an impassioned plea for justice and described the horrifying moment of his daughter’s death. The State offered no evidence regarding Mark’s mental condition and requested the death penalty based on the conviction for aggravated defilement and the “horrific circumstances” of the case. The High Court sentenced Mark to death.

Post-Sentencing Activity Proceedings:

On January 17th an Article ran in the New Vision regarding the decision to sentence Lombaba Mark to death. The article brought Mark’s situation to the attention of a Non-Governmental Organization called Justice Alliance for Citizens with Disabilities (JACD). The JACD hired new lawyers to take on Mark’s case. They approached Mark in prison and asked that he allow them to represent him pro bono. Mark refused to engage them. He told them that he already had an advocate.

Meanwhile, the time for appealing the High Court’s sentence passed without the filing of any appeal. Counsel for Mark wrote a letter to his client explaining his decision not to appeal. Counsel stated that an appeal would be a waste of the court’s time and money and that the sentence was within the proper discretion of the High Court based on the existing law.

When Mark received the letter from counsel he contacted the lawyers from JACD to see if they would be willing to take his case. The lawyers accepted and began working on the file immediately. The lawyers engaged a psychiatrist to meet with Mark and generate a report regarding his mental condition. The psychiatrist conducted a battery of tests and diagnosed Mark with Mild Mental Retardation, Executive Functioning Disorder and Anti-Social Personality Disorder.

Specific Information Regarding Disorders

The following are descriptions of the various mental conditions that Mark has been diagnosed as having. All of this information should be considered part of the record for the purpose of this Constitutional Petition.

Mild Mental Retardation

Mild mental retardation is a form of developmental disability and intellectual handicap and refers to the state, where intellectual development is week or more slow than other individuals in the same age group.

Mild mental retardation is a developmental disability and can be assessed from psychological or social factors. Psychologically, mental retard ness can be assessed by intelligence test. On intelligence scale (100), WHO (world health organization) has sets the boundary for mild mental retardation disability at IQ 50-70.

However social criteria is determined by individual’s capacity to meet the demands of surrounding people. The targets for individual here will be different from each other and will depend on life situation and social and cultural contexts. Majority of people with lower IQ, will still manage to meet up to the demands of the society.

Executive Functioning Disorder

The executive system is a theorized cognitive system in psychology that controls and manages other cognitive processes. It is also referred to as the executive function, the supervisory attentional system, or cognitive control.

The concept of executive functioning is used by psychologists and neuroscientists to describe a loosely defined collection of brain processes which are responsible for planning, cognitive flexibility, abstract thinking, rule acquisition, initiating appropriate actions and inhibiting inappropriate actions, and selecting relevant sensory information. The executive system is thought to be heavily involved in handling novel situations outside the domain of some of our 'automatic' psychological processes that could be explained by the reproduction of learned schemas or set behaviors. Psychologists Don Norman and Tim Shallice have outlined five types of situations where routine activation of behavior would not be sufficient for optimal performance:

1. Those that involve planning or decision making.
2. Those that involve error correction or troubleshooting.
3. Situations where responses are not well-learned or contain novel sequences of actions.
4. Dangerous or technically difficult situations.
5. Situations which require the overcoming of a strong habitual response or resisting temptation.

The executive functions are often invoked when it is necessary to override responses that may otherwise be automatically elicited by stimuli in the external environment. For example, on being presented with a potentially rewarding stimulus, such as a tasty piece of cake, the automatic response might be to take a bite. However, where this behaviour conflicts with internal plans (such as having decided not to eat chocolate cake while on a diet), the executive functions might be engaged to inhibit this response. While suppression of these "prepotent responses" is ordinarily considered adaptive, problems for the development of the individual and the culture arise when feelings of right and wrong are overridden by cultural expectations; when creative impulses are overridden by executive inhibitions. The neural mechanisms by which the executive functions are implemented is a topic of ongoing debate in the field of cognitive neuroscience. Traditionally, there has been a strong focus on the frontal lobes, but more recent brain research indicates that executive functions are far more distributed across the cortex.

Oppositional Defiant Disorder

Oppositional defiant disorder is described by the Diagnostic and Statistical Manual of Mental Disorders as an ongoing pattern of disobedient, hostile and defiant behavior toward authority figures which goes beyond the bounds of normal childhood behavior. People who have it may appear very stubborn.

To meet DSM-IV-TR criteria, certain factors must be taken into account. First, the defiance must interfere with the child’s ability to function in school, home, or the community. Second, the defiance cannot be the result of another disorder, such as the more serious conduct disorder, depression, anxiety, or a sleep disorder such as DSPS. Third, the child's problem behaviors have been happening for at least six months. The diagnostic criteria for this disorder are as follows:
Diagnostic Criteria
1. A pattern of negativistic, hostile, and defiant behavior lasting at least 6 months, during which four (or more) of the following are present: Note: Consider a criterion met only if the behavior occurs more frequently than is typically observed in individuals of comparable age and developmental level.
a. often loses temper
b. often argues with adults
c. often actively defies or refuses to comply with adults' requests or rules
d. often deliberately annoys people
e. often blames others for his or her mistakes or misbehavior
f. is often touchy or easily annoyed by others
g. is often angry and resentful
h. is often spiteful or vindictive
i. The disturbance in behavior causes clinically significant impairment in social, academic, or occupational functioning.
2. The behaviors do not occur exclusively during the course of a psychotic or mood disorder.
3. Criteria are not met for conduct disorder, and, if the individual is age 18 years or older, criteria are not met for antisocial personality disorder.
If the child meets at least four of these criteria, and they are interfering with the child’s ability to function, then he or she technically meets the definition of oppositionally defiant.

Anti-Social Personality Disorder

The Diagnostic and Statistical Manual of Mental Disorders fourth edition, DSM IV-TR, a widely used manual for diagnosing mental disorders, defines antisocial personality disorder (in Axis II Cluster B) as:[1]
A) There is a pervasive pattern of disregard for and the rights of others occurring since the age of 15, as indicated by three (or more) of the following:
1. failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest;
2. deceitfulness, as indicated by repeatedly lying, use of aliases, or conning others for personal profit or pleasure;
3. impulsivity or failure to plan ahead;
4. irritability and aggressiveness, as indicated by repeated physical fights or assaults;
5. reckless disregard for safety of self or others;
6. consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations;
7. lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.
B) The individual is at least 18 years of age.
C) There is evidence of Conduct disorder with onset before age 15.
D) The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or a manic episode.
Deceit and manipulation are considered essential features of the disorder. Therefore, it is essential in making the diagnosis to collect material from sources other than the individual being diagnosed.[7]
It is a requirement of DSM-IV that a diagnosis of any specific personality disorder also satisfies a set of general personality disorder criteria.

Constitutional Petition

The lawyers from JACD filed a Constitutional Petition under Article 137(3) challenging the death penalty sentence as applied to Mark.

The JACD lawyers raised six grounds to challenging the sentence of death:

It is unconstitutional to sentence an individual with the mental conditions of Lombaba Mark to death.
It is unconstitutional to sentence an individual to death for acts committed at the age of 18 years old.
The death sentence of Lombaba Mark is unconstitutional because the evidence in the record is constitutionally deficient to establish that Mark was 18 years of age or older at the time he committed the acts which form the basis of his death sentence.
The death sentence of Lombaba is unconstitutional based on the ineffective assistance of counsel.
The death sentence of Lombaba Mark is an unconstitutional because it arises out of actions and activities performed in accordance with the customs and customary law of Lombaba Mark’s tribe.
It is unconstitutional to sentence someone to death for the crime of aggravated defilement

The method of execution is not at issue in this exercise.

Briefing Assignment

The Constitutional Court has requested that the parties to the habeas case submit briefs on the legal issues presented. You may choose to draft your brief on behalf of Lombaba Mark or the Attorney General.

You may choose to cite from any jurisdiction in the world. However, you should realize that Ugandan law is most persuasive and you should be careful in to select outside authorities that are likely to resonate with a Ugandan Court.

Please refer to the “Rules for 2010 Intra-UCU Moot Competition” for guidance on deadlines, formatting and other rules regarding this competition.

This problem is subject to revision. A supplement to this problem will be issued if deemed necessary to make corrections or to respond to questions or concerns raised by the problem in its current form.

Good luck!

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Tuesday, March 23, 2010

Rules for 2010 UCU Intra-University Moot Competition

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