UGANDA

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Uganda

The republic of Uganda (Uganda)1 is a constitutional republic emerging from a long period of conflict. Between 1986 and 2004 The Lord’s Resistance Army (LRA) was engaged in fighting the Uganda Peoples Defence Forces in the northern and eastern parts of the country. The last presidential and parliamentary elections took place in February 2011 and were marred by some incidents of violence and allegations of corruption and irregularities.2 The Head of State of Uganda is President Yoweri Museveni and the Head of Government is Prime Minister Amama Mbabzi of the ruling National Resistance Movement (NRM) party. The human rights situation in Uganda remains fragile and challenges include instances of use of excessive force by security agencies, long periods of detention, human sacrifice and human trafficking, ‘mob justice’, torture and other ill treatment of detainees, gender-based violence, and corruption, among others.3

Uganda has a written Constitution and its legal system is based on English common law and customary law. At the lowest level the Local Council Courts handle minor disputes. The decisions of such Courts are appealable to the Magistrate Courts, Chief Magistrates Courts, High Court, Court of Appeal and the Supreme Court respectively.

The Uganda Police Force (UPF) is in charge of law enforcement in Uganda. It is one of the members of the Justice, Law and Order Sector under the Ministry of Internal Affairs.4 The UPF is headed by the Inspector General of Police who is appointed and reports directly to the President.5 The Uganda Police Force is responsible for maintaining law and order and for protecting property.

Other law enforcement services include the Uganda Prison Service, which is responsible for detaining individuals awaiting trial as well as those being tried or serving sentences. The Uganda Peoples Defence Forces also carries out some law enforcement activities and individuals subject to military law who commit an offence are tried by military courts under the Uganda Peoples Defence Forces (UPDF) Act 2005 and may be detained in military places of detention.6

In addition people with mental disabilities, refugees and asylum seekers, juveniles and internally displaced persons are detained under different arrangements under the Ministry of Health, Office of the Prime Minister, Ministry of Disaster Preparedness and Refugees and the Ministry of Gender and Social Development.

In July 2011 it was estimated that the prison population of Uganda was 31,683, and that 54.4% of the prison population were pre-trial detainees.7

Overview of key findings

Uganda is party to most of the main human rights treaties including the UN Convention against Torture (UNCAT). However, it has not yet signed or ratified the Optional Protocol to the UNCAT.

The right to freedom from torture and other forms of ill-treatment is guaranteed under the Constitution and is regarded as a non-derogable right.8 Torture is also prohibited under the Police Act, 2006.9 Notwithstanding the prohibition of torture contained in the Constitution and the Police Act neither define torture nor expressly criminalise torture as a specific offence. Torture is criminalised under the Ant-Terrorism Act 2002 with a maximum penalty of five years. However, this offence only applies to “authorised officers” as defined by the Anti-Terrorism Act as security officers designated by the Minister for Internal Affairs in accordance with Article 18 of the Act.10

The UN Committee against Torture has expressed concern with Uganda’s lack of compliance with some of its obligations under the UNCAT, in particular the lack of a comprehensive definition of torture as a criminal offence in domestic law as set out in Article 1 of the UNCAT.11

As a result of the lack of a specific criminal offence of torture under domestic law, victims of torture lack recourse to an effective remedy as required under Article 14 of the UNCAT, which contributes to a culture of impunity. Thus while cases of torture have been brought before national courts these have had to be presented as civil suits rather than as criminal offences. Furthermore, there is no provision for legal aid and access to justice is often out of reach for the poorest and most marginalized members of society.12

In order to try and address some of these problems, in 2009 the Ugandan Human Rights Commission together with the African Centre for Treatment and Rehabilitation of Torture Victims (ACTV), and Avocats Sans Frontieres (Lawyers without Borders) presented a Draft Bill for the Prohibition and Prevention of Torture, which has been tabled before Parliament. This Bill attempts to rectify some of the gaps in the protection against torture and other ill-treatment that have been identified.

It is worth noting that the death penalty is retained for a wide variety of crimes under the Penal Code Act 1950 (as amended in 2007). Crimes for which the death penalty is mandatory include the following; treason,13 murder,14 aggravated robbery.15 Crimes for which the death sentence is left to the discretion of the Court include; treasonous offences,16 kidnapping with intent to murder,17 rape18 and defilement.19 Under military law, the UPDF Act provides for a mandatory death sentence for a variety of offences such as treachery,20 disobedience of a lawful order leading to loss of life,21 failure to protect or misuse of war materials,22 offences related to security23 and offences in relation to convoys, losing stranding or hazarding vessels24 and mutiny25 among others. Other offences such as desertion also have the death penalty as the maximum penalty.26 However, according to statistics compiled by Amnesty International, while Ugandan civilian and military courts continue to impose the death penalty, in 2010 no-one was executed.27

The UN Human Rights Committee has in the past expressed concern regarding “the broad array of crimes for which the death penalty may be imposed”28 and found the mandatory imposition of the death penalty incompatible with the Covenant. The Committee has also expressed concern about the long periods of time which convicted prisoners spend on death row.29

On 21 January 2009 the Supreme Court of Uganda upheld a previous judgment of the Ugandan Constitutional Court that the mandatory application of the death penalty was unconstitutional. However, in the same decision the Supreme Court ruled that the death penalty per se remained constitutional. In making this decision the Court held that most of the mandatory death sentences imposed upon the majority of over 400 appellants should be commuted to life imprisonment.30

Homosexuality is also a criminal offence under the Penal Code. Section 145 (a) states: ‘Any person who has carnal knowledge of any other person against the order of nature commits an offence and is liable to imprisonment for life.’

While in practice few cases have been brought before the courts under this specific offence, lesbian, gay, bisexual or transgender (LGBT) individuals are vulnerable to discrimination and abuse and there are reported allegations of torture and other ill-treatment of LGBT individuals whilst held in detention.31

In general, the protection and safeguards to be afforded people deprived of their liberty is fairly well provided for under the Constitution and domestic laws such as the Prisons Services Act 2006. These guarantee a range of rights and in effect domesticate some obligations contained in treaties such as the International Covenant on Civil and Political Rights and the UNCAT, as well as other international and regional instruments. However, the preliminary research findings of the Article 5 Initiative suggest that there is a disparity between what the law provides and what occurs in practice.

Over the years international and regional human rights bodies have expressed concern regarding the widespread occurrence of torture and other ill-treatment in Uganda and the treatment of persons deprived of their liberty. Particular areas of concern have included excessively long periods spent in pre-trial detention and the use of “unofficial” places of detention.32 During the consideration of the third report submitted by Uganda to the African Commission on Human and Peoples’ Rights in 2009, the African Commission noted with concern the poor conditions of detention, in particular the fact that only 9% of prisoners have access to clean water and only 62% of prisoners are provided with meals on a daily basis.33 Furthermore, the Ugandan Human Rights Commission and civil society organisations continue to report widespread incidents of torture and other ill-treatment, including poor conditions of detention.34

The Justice Law and Order Sector have reported that improvements have taken place recently and that the average stay on remand per prisoner has reduced from 27 months in 2009/10 to 15 months in 2010/11.35 However, it has also acknowledged that there remains a backlog in cases. It has also reported its disappointment that “no progress has been made in designing and implementing a legal aid policy”.36

In addition, some particularly vulnerable groups of detainees do not appear to be adequately protected in practice. For example there are approximately four remand homes for juveniles within Uganda and due to a shortage of appropriate facilities juveniles deprived of their liberty are frequently held in detention facilities with adults contrary to international standards.37

The Prisons Act 2006 also provides for female prisoners to be detained in separate prisons and they may be admitted with their infants, and this does appear to be observed in practice. This Act further provides for special facilities for pregnant and nursing mothers. Infants with their mothers are supposed to be supplied with clothing and other necessities of life until the infant is 18 months when they are handed over to a relative or friend or if this is not possible to the welfare or probation or welfare authority.38 However challenges are faced in actually implementing these special measures for women detainees who are pregnant or nursing possibly as a result of budgetary restrictions.

Notwithstanding these challenges to securing safeguards for people deprived of their liberty there are some examples of good practice. The Prison Act provides that upon admission into custody, the officer in charge shall record or cause to be recorded in the relevant registers particulars of the detainee.39 In practice it is reported that this is generally observed by prison officers. Another positive safeguard provided under Ugandan law which appears to be upheld in practice is the prohibition on the admissibility of evidence or confessions obtained through torture contained within the Criminal Procedure Code 1950. This provision in effect domesticates the obligation contained within Article 15 of the UNCAT. The preliminary research findings of the Article 5 Initiative indicate that in practice this provision is observed and the Courts do not admit evidence obtained through torture. For example, in a case dating back to 1998, Festo Asenwa and Kakooza vs. Uganda, the Supreme Court of Uganda held that the evidence obtained from an accused person through torture is not admissible. This decision has been upheld in subsequent cases.40

In conclusion, in recent years there would appear to be some political willingness to address some of the problems, illustrated by the adoption of domestic legislation which provides a legal framework for the treatment of persons deprived of their liberty, such as the Prisons Service Act 2006, and this is to be welcomed. However, there would appear to be a failure to realise many of these safeguards in practice and torture and poor conditions of detention continue to be a concern. Furthermore, there are serious shortcomings in the legal framework such as the lack of a specific offence of torture and obstacles remain for victims of torture and other forms of ill-treatment in accessing justice and obtaining adequate reparation.

Footnotes

  1. Due to the desktop nature of this research, it has been difficult to establish the practical situation in the country. There are gaps in the information available, especially regarding statistics concerning people deprived of their liberty and the practice relating to the law enforcement and security agencies such as the Uganda Police Force, Uganda Peoples Defence Forces and the Uganda Prison Service, especially in relation to staffing. There is a reluctance to provide updated information from these services. It is difficult to ascertain the exact number of places of detention both under civil and military control. It is also proving difficult to obtain information about bodies with a mandate to visit places of detention and how they function in practice.
  2. See Final Report of the European Union Election Observation Mission to Uganda, 10 March 2011 available at: http://www.eueom.eu/files/pressreleases/english/eueom_uganda2011_final_report_en.pdf.
  3. See Uganda Human Rights Commission Annual Report on the situation of Human Rights 2010 available at www.uhrc.ug; Also see US State Department, Uganda Country Report 2010 available at http://www.state.gov/g/drl/rls/hrrpt/2010/index.htm; UN Summary of Stakeholders Information prepared for the UPR UN Doc A/HRC/WG.6/12/UGA, 20 July 2011, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/152/32/PDF/G1115232.pdf?OpenElement
  4. The Justice Law and Order Sector is a sector wide approach adopted by the Uganda Government to bring together institutions working on closely linked mandates of administering justice and maintaining law and order and human rights, in order to develop a common vision, policy framework, unified on objectives.
  5. See Article 213 of the Constitution of the Republic of Uganda
  6. For details of who may be considered to be subject to military law see Article119 of the Uganda Peoples Defence Forces Act 2005. For details of the committal and incarceration procedures under military courts see Part XI of the Uganda Peoples Defence Forces Act 2005.
  7. See statistics for Uganda compiled by the International Centre for Prison Studies, World Prison Brief, available at: http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=51. Accessed on 11 October 2011.
  8. See Articles 24 and 44 of the Constitution.
  9. Article 81(2) of the Police Act 2006.
  10. See Articles 2 and 18 of the Anti-Terrorism Act 2002.
  11. See Concluding Observations and Recommendations of the Committee against Torture, UN Doc UN/CAT/C/34/UGA, 21 July 2005, §5.
  12. In 2009 24.4% of the population were estimated to be living below the national poverty line in Uganda. See UN Statistics Division available at: http://data.un.org/Data.aspx?d=MDG&f=seriesRowID%3A581.
  13. Section 25 (1) and (2) Penal Code Act.
  14. Section 83 Penal Code Act
  15. Sections 272 & 273 (2) Penal Code Act.
  16. Section 25 (3) and (4) Penal Code Act
  17. Section 235 Penal Code Act.
  18. Section 118 Penal Code Act.
  19. Section 123 Penal Code Act as amended by Statute 4 of 1990.
  20. Section 129 Uganda Peoples Defence Forces Act.
  21. Section 133 Uganda Peoples Defence Forces Act.
  22. Section 122 Uganda Peoples Defence Forces Act.
  23. Section 130 Uganda Peoples Defence Forces Act.
  24. Section 151 Uganda Peoples Defence Forces Act.
  25. Section 132 Uganda Peoples Defence Forces Act.
  26. Section 146 Uganda Peoples Defence Forces Act.
  27. See Amnesty International Annual Report 2011, Uganda country profile, available at: http://www.amnesty.org/en/region/uganda/report-2011
  28. UN Doc/CCPR/CO/UGA, 4 May 2004, §13
  29. Ibid. §13. See also Barbra Masinde and Martin Owor, Review of death penalty cases in Uganda, 1st August-30th September 2005.
  30. Attorney General v Susan Kigula & 417 Ors (CONSTITUTIONAL APPEAL NO. 03 OF 2006) [2009] UGSC 6 (21 January 2009)
  31. See for example the case of Victor Juliet Mukasa & another Vs. Attorney General Misc. Cause 247/06 before the High Court where the claimant was subjected to ill treatment because of her sexual orientation. The Court affirmed their rights to privacy and freedom from ill treatment, among others.
  32. See Concluding Observations of the CAT, UN DOC/CAT/C/34/UGA, 21 July 2005, §6 and 7; and Concluding Observations of the CCPR UN DOC/CCPR/CO/UGA, 4 May 2004 §17 and 18.
  33. See Concluding Observations of the African Commission on Human and Peoples’ Rights on the 3rd report of Uganda, p.5, §31 and 32.
  34. See 10th Annual Report of the Ugandan Human Rights Commission, in particular Chapter 2.
  35. See Development Partners’ Assessment of Progress in the JLOS, July 2010 – June 2011. Available at: http://www.jlos.go.ug/uploads/Development%20Partners%20assessment%20of%20progress%20in%20the%20JLOS%20FY10-11.pdf
  36. Ibid.
  37. See for example Article 37(c) of the Convention on the Rights of the Child, to which Uganda is a State Party; and Provision 29 of the UN Rules for the Protection of Juveniles Deprived of their Liberty, UN GA/RES/45/113, 14 December 1990.
  38. See Section 59 of the Prisons Act.
  39. See Section 61 of the Prisons Act.
  40. See for example Babyebuza Swaibu vs. Uganda, SCCA N0.47/2000.

A5I workshops in Uganda

Between 17 and 18 July and 3 and 4 December 2012 workshops were held in Uganda as part of the A5I in-country activities. The workshops were organised with the assistance of the Ugandan Human Rights Commission and brought together a range of key national stakeholders including representatives from the government; the Ugandan Police Force; Ugandan People’s Defence Force; Ugandan Prisons Services; the High Court; EU; the Office of High Commissioner for Human Rights; and civil society organisations.

See photos below taken at the 1st and 2nd workshops in Uganda

ACHPR

1st and 2nd State report

Concluding observations on the 1st and 2nd report

3rd State report

Concluding observations on the 3rd report

UN

Universal Periodic Review documents

CAT Initial report

CAT Concluding Observations

CCPR Initial report

CCPR List of Questions

CCPR Concluding Observations

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