Moina Spooner, from The Conversation Africa, asked Jamil Ddamulira Mujuzi, a human rights expert who has been monitoring the situation in Uganda, to provide insights into domestic laws and what they say in relation to the detention of civilians by security forces.
What is arbitrary detention and what does Uganda’s law say in relation to it?
Arbitrary detention is when a person is arrested and detained by a government without due process and without the legal protections of a fair trial. It can also refer to when a person is detained without any legal basis.
Arbitrary detention is prohibited in international human rights law – the Universal Declaration of Human Rights (1948) provides that “no one shall be subjected to arbitrary arrest, detention or exile.”
In addition, the International Covenant on Civil and Political Rights (1966) and the African Charter on Human and Peoples’ Rights (1981) prohibit arbitrary detention. Both these treaties have been ratified by Uganda.
Uganda also has local legislation which protects the right to liberty and prohibits arbitrary detention, including Article 23 of the Ugandan constitution.
There are however grey areas that may embolden the state in carrying out arbitrary arrest. The Police Act (1994) provides for circumstances in which a police officer may arrest and detain a person who is suspected of committing an offence. In addition, Section 161 of the Uganda Peoples’ Defence Forces Act provides that a soldier can arrest any person who is reasonably suspected of being in possession of military clothing or equipment.
Nevertheless, in all circumstances, the constitution states that the arrestee has to be brought before the court no later than 48 hours from the time of their arrest. Despite this, there are innumerable cases of arbitrary detentions in Uganda.
For example, in its 21st Annual Report, published in 2018, the Uganda Human Rights Commission noted with concern:
the continued long and arbitrary detention of suspects in police custody which negatively affected their right to fair and speedy trial. Some suspects were found to have been detained for weeks and even months in police custody without being produced before court.
Things haven’t improved. Since late last year, there have been reports that hundreds of supporters or members of the National Unity Platform, the leading opposition party headed by Robert Kyagulanyi (popularly known as Bobi Wine), have been arbitrarily detained. Internal Affairs Minister Jeje Odongo even presented a list to parliament of 177 people who were in military detention. The Ugandan president confirmed that these detentions have been carried out by the Ugandan military.
Although these people have been ostensibly detained for allegedly committing offences, most of them have not been brought before the court for prosecution. Just a few were arraigned before the court martial. This creates room for the argument that the detentions are meant to intimidate, persecute and ultimately weaken the opposition.
What do laws say in relation to torture and have any government forces ever been convicted of torture?
Torture is prohibited under international law. Ugandan law also protects the right to freedom from torture.
Article 24 of the constitution states that:
No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.
Torture is also criminalised by the Prevention and Prohibition of Torture Act (2012). A court that convicts a person of torture can impose a sentence of not more than 15 years imprisonment or a fine or both.
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Despite these laws, torture appears to be rising in Uganda. The Uganda Human Rights Commission reported 346 complaints of torture in 2018. This was a 13% increase from the 306 complaints that were registered in 2017. The torture was allegedly mostly carried out by the police, the army and prison authorities.
It is against that background that the Uganda Human Rights Commission recommended that the Director of Public Prosecutions prosecute alleged perpetrators. However, there is no reported incident in which any of the perpetrators has been prosecuted.
Any person can institute a private prosecution against an alleged perpetrator of torture. However, attempts by victims of torture to institute private prosecutions against the perpetrators have also been unsuccessful. This is so because the Director of Public Prosecutions has taken over these private prosecutions and has not continued with them.
It would appear that the Director of Public Prosecutions’ office is not interested in prosecuting law enforcement officers who are alleged to have committed torture.
For those that are held without charge, how is the situation resolved?
Some people who are held without charge are released after spending a few days, weeks or months in detention. However, others are not released and their lawyers have to approach the High Court to order their production in court. This is on the basis of the constitution, which provides for the right of habeas corpus – when a person is wrongfully detained and a request is made for a court order to produce the prisoner.
However, there are cases whereby some of those who have not been released, in particular those who were arrested by the army, have been prosecuted before courts, especially military courts, on trumped-up charges.
What must be done to ensure that the rights of civilians are protected?
There are many interventions that could be put in place to protect the rights of civilians. Firstly, the army should stop being involved in law enforcement. This is so because army officers are not equipped with the necessary training and experience to do so. They should leave law enforcement to the police.
The Ugandan police are slowly being militarised. This is evidenced by, amongst other things, the deployment of senior military officers in key leadership positions in the police and the active participation of the military in policing operations. Many serious human rights violations, for example, the killing of over 40 protesters last year, have happened during joint police and military operations.
Secondly, the culture of impunity should stop. Police and military officers who violate human rights should be held accountable. The army is also increasingly becoming partisan. The one-sided purported enforcement of Covid-19 regulations during the recently concluded presidential and parliamentary elections showed that the security agencies were bent on crushing the opposition.
I strongly believe that – in terms of Article 7 of the Rome Statute of the International Criminal Court – the abduction, torture and enforced disappearance of National Unity Platform members are crimes against humanity. This treaty was domesticated in Uganda through the International Criminal Court Act (2010).
Since there is no indication that the Director of Public Prosecutions is willing – or able – to prosecute those who are involved in these heinous crimes, the International Criminal Court may have to intervene and, on the basis of command or superior responsibility, hold the senior military officers accountable.
Otherwise, other countries should be prepared to invoke their laws on universal jurisdiction to hold these officers accountable. This is because the crimes of torture and enforced disappearances are crimes under international law.
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