The Uganda Law Society (ULS) and Avocats Sans Frontiere (ASF) are implementing a project titled “Mobilizing Lawyers for the Right of Ugandan”. The main objective of the project is to strengthen the capacity of Ugandan Lawyers to protect the rights of vulnerable people in Uganda. One of the project result areas is advocacy for the implementation of policy and legislative frameworks hat protect rights of vulnerable persons.
ASF and ULS have noted with concern the persistent violation of fundamental rights of vulnerable persons in prolonged pre-trial detention in the criminal justice system in Uganda. This is a grave violation of the right to liberty, fair and speedy trial and the presumption of innocence which rights are internationally and nationally recognized and entrenched in our constitution.
Pre-trial detention is a form of detention in which someone I kept detained in a government facility while she or he await legal proceedings such as a trial. People in detention are usually held in jails instead of prisons, or are held in specialized pretrial detention facilities. These prisoners are not guilty of any crime yet they are treated as offenders and deprived of their freedom and usually have their activities restricted while they are in detention.
The Universal Declaration of Human Rights states that everyone has the right to life, liberty and security of person. The Declaration further provides that no one shall be subjected to arbitrary arrest, detention or exile and that everyone has a right to be presumed innocent until proven guilty. Uganda also recognizes the International Convention on Civil and Political Rights; The African Charter on Human and Political Rights; The UN Convention on the Rights of the Child, to mention but a few.
With regard to our national laws, Article 23 of the 1995 Constitution provides for the protection of personal liberty while Article 24 of the same provides for the respect for human dignity and protection from inhuman treatment. Other local legislation includes the Police Act: The Magistrate Court Act; The UPDF Act and the Children’s Act which provides an elaborate framework for detention of juvenile etc.
The statistics on the number and percentage of persons formally accused of crime who are detained pending trial are not only problematic but also disturbing. A 2010 report from the Uganda Prisons Service showed an elevated national prison population of 30,585 of which 17,015 were suspects awaiting or on trial while statistics as at 30th June 2014 puts the general prison population at 41,516 of which 55.8% inmates are on remand, 43.6% convicted prisoners and 0.6% civil debtors. The prisons are overcrowded well above their carrying capacity by over 200% to 350% and prisoners lack basic needs and adequate beddings, food, clothing and medical care.
With the said congestion and over-crowding in prisons and detention places, it is disappointing that in Uganda, persons continue to be arrested and detained on suspicion that they have committed a criminal office; often held for weeks, months or even years before a court even hears their cases let alone pass judgment. Our police even take the liberty to parade some of these suspects in public and the media totally negating the principle of presumption of innocence. The suspects’ legal status is undermined and they are also under enormous personal pressures such as loss of income for those who are employed, separation from family and community ties and most even face torturous conditions. The pre-trial stage (from arrest to trial) of the criminal justice process is also particularly prone to corruption. Unhindered by scrutiny or accountability, police, prosecutors and judges may arrest, detain and release individuals based on their ability to pay bribes. It has a hugely damaging impact on the accused, their families and communities. Even if a person is acquitted and released, they may still have lost their home and job. They face the stigma of having been in prison when they return to the community.
Globally, pretrial detention is a very contentious issue. In some nations, Uganda inclusive, the number of people in detention awaiting legal proceedings is greater than the number of people who have actually been convicted and sentenced to prison. Pretrial detention contributes significantly to prison overcrowding and people can wait for years for legal proceedings to begin. Some governments- ours inclusive, have been accused of using pretrial detention to effectively imprison people indefinitely without trial.
Consultations and consensus building on the subject with key justice, law and order actors in the four regions of Uganda namely, central, eastern, northern and western Uganda have been held and the views and suggestions analyzed and presented here below to provide an insight into the problem for key policy makers, justice sector actors, human rights based organizations and the general public on the challenge of prolonged pre-trial detention in Uganda, the legal and constitutional context, its causes, implications and suggested interventions to alleviate the problem.
Due to its sever and often irreversible negative effects, international law states that pre-trial detention should be the exception rather than the rule and that if there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied. A range of non-custodial measures are available and these include:-
a) Bail
b) Confiscation of travel documents
c) Reporting to police or other authorities
d) Submitting to electronic monitoring or curfews in advanced countries.
Other suggestions from the research and consultations include the following:-
Aside from enforcing the 24-hour rule, a review should be carried out of all prison inmates on remand and those who have been detained beyond the constitutional limits in order to determine whether their cases should be dismissed for want of prosecution, or whether they can be released on suitable bail and bond conditions pending disposal of their cases.
4 CONCLUSIONS
It is established that the excessively long remand periods of prisoners in Uganda awaiting commencement and completion of their criminal prosecution exposes them to gross human rights violations which contravenes Uganda’s domestic and international obligations to protect its citizens’ fundamental rights.
Although resource constraints remain an inevitable challenge, the problem of lengthy pre-trial detention can be ameliorated by streamlining court processes, distributing caseloads more equitability ensuring legal representation, recruiting and training staff more effectively, among other measures recommended above the most important of which is getting government buy-in to eradicate this vice.
A fair and functioning justice system is a critical component of a free and democratic society, and Uganda has made important strides in this direction. Priority also needs to be given to consistently protecting the rights of the most vulnerable-especially those hidden from public view in places of detention-in order to ensure that the right to be presumed innocent and to have a fair and speedy trial is universally respected, both in law and practice.