Monday November 7 2016

As courts make strides on justice for mentally ill inmates —who cares?

The Officer in Charge of Katojo prison,

The Officer in Charge of Katojo prison, Innocent Majeme (R), listens to Justice Center’s Regina Babukiika (C) outside Katojo prison. In the background are the three inmates who were transfered to Butabika after serving more than 10 years on remand. Photo by Frederic Musisi 

By Frederic Musisi

“Don’t get me wrong on this but why are you so interested in this case?” a senior judicial officer, one of the several interviewed for the third part of our follow up on the plight of mentally inmates, asked me as he ushered me into his chambers at the High Court premises in Kampala. It was also the greeting, accompanied with a suspicions grin.

Bizarrely off-guard, it was the reasoning he offered for the question that actually got me flustered, as I sank in one of the two visitors’ chairs in his chambers. He implied that perhaps I had a relative, in the ever growing number of criminal lunatics (as the law calls them), whose justice I was fighting for “under the cover of highlighting” a human rights violation issue in Uganda’s justice system.

“See, you journalists are interested in politics and scandals. In fact no one has ever bothered me on this specific matter,” he added. “So I couldn’t help but get curious from the moment you called, wanting an appointment.”

Abdul Balyebulya  (L), his father and daughter

Abdul Balyebulya (L), his father and daughter whom he left behind as a three months old toddler outside their house in Bundibugyo District. Photo by Frederic Musisi

The mistrustful questioning and labourious answering went on for about 10 minutes, when he admitted that the keeping on indefinite remand of inmates with mental illnesses was among the issues that have stained the Judiciary for long.

A week prior to the meeting, on phone, I did mention to the official a ruling last year by the Constitutional Court in which the five justices ordered the immediate release of inmates with mental illness, describing their continued stay in prison as “unconstitutional”. He said he was unaware of the ruling and requested that I deliver a copy to his office. I did but asked how he could be so oblivious about things happening in the Judiciary.

“True I agree,” he said as he scanned the copy of the judgment while I was in his office. “It is superfluous for a judge to find that someone cannot stand trial on grounds of mental incapacity but leave them hanging—or rather keep their fate in the hands of the minister who has no idea about what he is even supposed to pardon.”

He added: “The precedent (Justice David Batema’s ruling in the Eric Bushoborozi Versus Uganda case) and this pronouncement by the Constitutional Court, however doesn’t mean these people will be released just like that. There have to be due processes followed, and the inmates have to have lawyers to offer legal aid, to care and follow-up the matter through; short of that I am afraid the situation is not about to change.”

Abdul Balyebulya and his lawyer, Regina

Abdul Balyebulya and his lawyer, Regina Babukiika, who convinced him to talk to this newspaper, he had earlier declining fearing we were on a mission to send him back to prison. Photo by Frederic Musisi

Two steps forward, one backward
Eric Bushoborozi, the first inmate to be set free in July last year was lucky; he had a lawyer, Cosmas Kateba, who butted heads with the Judiciary bureaucracy up to the end. Kateba started by filing an application at the Fort Portal High Court seeking among others, Bushoborozi’s release, and strip the Minister of Justice of powers to release mentally ill inmates once found so by court.

His endeavours included writing letters to senior Judiciary officials in Kampala over the matter but even when they did not respond, Kateba, in a recent interview said he was not about to back down. Luckily, he recalled, the presiding judge of the court at the time (Justice Batema) was a nonconformist and hence the landmark ruling, which several officials said is a major precedent in Uganda’s jurisprudence.

In his ruling Justice Batema argued: “I am of the strong belief that the trial court retains the power to issue special orders for the confinement, discharge, treatment or otherwise deal with the prisoner that is insane or has ceased to be insane. That criminal file remains open, pending the judge’s special orders. It is not done with until all is done with the prisoner.”

Bushoborozi is coping well with society in Kabarole District, notwithstanding some financial hardships. At the time he walked out of prison, Justice Centers-Uganda, a not for profit project of the government’s Justice Law and Order Sector (JLOS) had filed an omnibus (single) application seeking orders for the release of the eight mentally ill inmates at Katojo prison in Fort Portal.

The application was thrown out by Justice Batema who reasoned and advised that, if Justice Centers was to secure the release of the inmates, they had to instead (re) file criminal miscellaneous applications for each inmate individually, which would pave way for a miscellaneous cause, asking the prosecution to show cause why these people should not be released.

In each miscellaneous application, Justice Centers had to attach relevant documents – affidavits of medical evidence sworn by expert psychiatrists, the Officer in Charge of Katojo prison, the custodian of the inmates, and other accompanying documents, since the original files were missing.

“A miscellaneous application usually arises out of a miscellaneous cause. Dealing with each application would help establish, which inmate is fit to be released back to society and which inmate should be referred to a psychiatry facility for specialised care,” Justice Batema, who is now the resident judge of Soroti High Court recently said in an interview.

He added: “You see the whole problem is embedded in society’s prejudice against people with mental illnesses whether they have committed crimes or not. This was worsened by the law (Trial on Indictment Act and Penal Code) which calls these people imbeciles, criminal lunatics and other names. So the prosecutor goes to court to nail lunatics not people who need help.”

The case went back and forth over the months until September when Justice Center’s legal officer Regina Babukkika, secured the release of seven inmates at Katojo. The eighth inmate, Sande Kamuhanda, who had spent 26 years on remand and was the longest serving inmate in that category, died in April. He had resigned to his fate, until he suffered a stroke. At his deathbed, there was no one to take care of him. No one claimed his body and he was buried in a cemetery in Fort Portal.

Justice Ojok ordered the immediate release of the inmates, having been convinced by medical records that those who have been on medication and are fit should be set free. Those who were unfit should be immediately transferred to the Butabika National Referral Hospital for care.

Musing on the victory, Babukiika said the success of the case was primarily hinged on Justice Batema’s ruling that stripped the minister of powers to review the records and set the inmates free, and the Constitutional Court ruling that struck down sections of the Trial on Indictment Act.
The other lingering challenge, she said, is to ensure that inmates in other prisons are released, “Or else we would have scratched the issue only at the top.”

Besides the nine who are no longer in prison, according to prison’s records, there is another around 50 inmates of this kind in mainly Luzira and Masaka prisons.

Legal aid critical but not empowered

Justice Centers is a project that was established in 2009 and operationalised in the Judiciary as a one stop-shop legal aid clinic that seeks to bridge the gap between the supply and demand of justice and offer legal advice, court representation and psycho social support.

The national project’s coordinator, Christine Biraabwa, in a separate interview in Kampala, said they were established as “a pilot project” that would eventually lead to the establishment of the bigger institution—National Legal Aid Clinic—to dispense legal aid and handle such issues.

Six years later, none of such efforts has materialised and Justice Centers, still operates as a project, teetering on the edges of financial implosion. Of the seven centres they used to operate countrywide operations at some have been closed due to limited funding.

Birabwa said the issue of the mentally ill inmates is something they had discussed with other JLOS units for some time “but there is nothing we could do about it institutionally. It was not until Justice Batema’s ruling that we knew we had a starting point. There are several precedents now in case anyone is interested.”

“In fact, JLOS has requested us if we could take up all the cases of the inmates in other prisons. It is something we would happily take on but owing to the circumstances that is a future prospect although we are having conversations.”

Of the seven inmates released, Abdul Balyebulya returned to his home in Bundibugyo. Three, Rogers Aganyira, Jimmy Narubwine, Monday Abudullah, seemed to have disappeared into oblivion and one can only hope they do not get in trouble with the law again.

The other three, Besige Mukama, Kule Ruhaheru and Emmanuel Kambasu, also having been on remand for more than 10 years, were referred to Butabika hospital.

But as seen in a two part series earlier done by this paper, the hospital has also raised a flag about insufficient resources. Although the officials at the hospital, would never turn the inmates away, they say a lot more needs to be done by the government and other stakeholders. More resources would help a great deal, they say.

Freed from the clutches of mental illness and jail

For Abdul Balyebulya, September 17 started like any other day and he expected it would end just like all the other days for the 15 years he had spent on indefinite remand; he had been jailed for murder. He woke up early to the same routine but it was the afternoon court appearance that dramatically changed things.

Balyebulya had regained his mental health in 2012 following seven years of medication and was living a fairly normal life as one can, in prison. On September 17, he was produced in court at 2pm for a session that dragged on till about 7pm with the lawyers including his, Babukiika, battling in a language he could not grasp. It was only when he was told by the presiding Judge Anthony Oyuko Ojok that he was a free man, that he realised this was not the usual court hearing he had grown accustomed to.
He was unshackled and his older brother Sunday John was there to receive him. They left in a hurry. They did not even speak to his lawyer. “The last place I wanted to be in was a court, what if the judge changed his mind anyway?” Balyebulya told this newspaper. They braved the two-hour night journey – about 24km back home – to Bundibugyo District.

A phone call had been made earlier to relatives at home, who passed the news around so, on arrival, at about midnight they found almost half of the village, Bubombori III, which is 6km from the Uganda-DR Congo border, and buried deep in the mountains, bustling with merrymaking.

Balyebulya was sent to prison at the age of 20 on charges of murder and attempted murder. He is now 36. Luckily all his family members were still alive when he returned.

His only child, a daughter who he left behind as a three-month-old toddler is now 16 years old. The girl’s mother, with whom Balyebulya had planned to get married, is now a mother to five other children, each with a different father.

The small mud-and wattle house he left behind was destroyed during the heavy days of fighting between the UPDF and the ADF insurgents, and the strong rains and sun. It is no more and its site is now a cocoa garden.

After all these realities dawned on him, Balyebulya was deflated. “I now have nothing left for me,” he said as he spoke to us. He had to be convinced by many including the area leadership that our interview would not lead him to going back to prison. During the two-hour interview, he was flanked by about 20 family members who looked on suspiciously, and seemed ready to pounce on anyone who said their son was going back to jail.

“To this day the village does not believe their son committed any of the crimes he was accused of,” Balyebulya’s eldest brother said, explaining the suspicious looks on the faces of the relatives lounging around. “It was even harder to believe when they were told he actually had a mental problem.”

His medical records submitted, indicated he was diagnosed with chronic schizophrenia and depression in 2006 and immediately put on treatment coupled with periodical reviews. Schizophrenia is a mental disorder characterised by abnormal social behaviour and failure to understand what is real.

Balyebulya, was arrested in July 2001 for apparently shooting two people dead and injuring another one, though he says does not remember any of this or what could have sparked the rage. In the process of trying to resist arrest by soldiers he was shot in the leg.

His case went through the normal court process in the magistrates court before he was committed to the High Court in Fort Portal. On February 21, 2006 he was declared incapable of standing trial because he was deemed to have an unsound mind.

Prior to the eventful turn of things, Balyebulya lived a quiet life as a farmer, but those being the days of the ADF insurgency he was compelled to enroll in the army in 1998 where he served for only two years.

When we visited him, he had just accepted to take back the mother of his child, their daughter and her children in tow, to try and forge a new life. His father, who is almost 80, offered them a room in his three-roomed mud and wattle house, as a start.
With his eyes glued to the ground and in a shy voice, Balyebulya asks, “What would you have done if you were in my situation?”

Report.

The Uganda Law Reform Commission, a body which is mandated with updating laws in line with the social, cultural and economic needs, is currently reviewing the Trial in Indictments Act on treatment of mentally ill accused persons among other clauses.
Committee. On August 31, 2015, the Chief Justice Bart M. Katureebe, constituted a committee headed by retired Supreme Court Justice John Wilson Tsekooko to oversee the reviewing process so that the laws can suit current trends.

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