What law says on arrests, protests

Police officers prevent youth activists from accessing the US embassy. They claimed they were delivering a letter to the US ambassador

What you need to know:

The police have often been accused of flouting the laws that protect the liberty of Ugandans enshrined in the Ugandan Constitution which is the supreme law of the land. Didas Kisembo takes a look at some of the most prominent events that brought police conduct into question, the Articles that were affected and speaks to a lawyer to derive a legal take on the matter.

TVO
On June 8, police arrested Robert Shaka, an information and security analyst accusing him of promoting sectarianism on social media.
It was alleged that Shaka violated the Computer Use Act through a Facebook account writing under the name Tom Voltaire Okwalinga, or TVO. Police then searched his home, taking some of his computer equipment.
Police went on to also detain Shaka for several days until his lawyer got a court order for his release.
At the time, the Daily Monitor contacted police spokesman Fred Enanga for a comment which he declined, saying it is only the Inspector General of Police, Gen Kale Kayihura, who could talk about the issue.

What the law says
Article 23(4) A person arrested or detained—
(b) Upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to court as soon as possible but in anycase not later than forty-eight hours from the time of his or her arrest.

Article 27. Right to privacy of person, home and other property.
(1) No person shall be subjected to— (a) unlawful search of the person, home or other property of that person; or (b) unlawful entry by others of the premises of that person.
(2) No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.

Legal take
“The case of Shaka was quite funny. Police did act within certain confines of the law because it has the power to arrest without an arrest warrant where it believes there is a felony about to be committed,” says Arthur Abaliwano, a lawyer at the Wagabaza law firm.
“However, the mistake that they made is that he was detained beyond the required 48hours before arraigning him in court.”

Besigye
On Jul 9, hours to the launch of his campaigns for Forum for Democratic Change (FDC) party presidential flag-bearer, police arrested and detained Dr Kizza Besigye.
Dr Besigye had set off from his home in the company of his aide, Francis Mwijukye, and a few others at around 9am before being halted a few metres away from his home by Kasangati Division field force operations commander Fred Ahimbisibwe who emerged and gave Dr Besigye two options; to either go back to his house or get arrested.
He chose the latter, observing that his home “is not a prison”.
“I am a law abiding citizen, my home cannot be a prison. I have work to do and if I have broken any law, you (police) take me to prison,” Dr Besigye told the police officers who had barricaded the road to his home.
Mr Ahimbisibwe told Dr Besigye that police had information he planned to incite violence in the city.
“We have information that you plan to cause mayhem in the city, so go back home.”

Dr Besigye asked police to escort him to the American Embassy where he said he had a scheduled meeting but that too was declined.
Upon requesting why he was being prevented from proceeding to his daily duties, the police officer responded that he was acting on orders from above. Dr Besigye was then ushered into a waiting police pick-up truck and rushed to a police station where he was detained until late evening.
In a letter the Daily Monitor saw on the day, police claimed in the retired colonel violated Section 5(1) of the Public Order Management Act 2013.

“……An organiser of a public meeting shall give notice in writing signed by the organiser or his or her agent to the authorised officer of the intention to hold a public meeting, at least three days but not more than 15 days before the proposed date of the public meeting,” noted the letter signed by Mr Erasmus Twaruhukwa on behalf of the IGP, read in part.

What the Law says;
Article 23 (3) A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

However denotes that, Article 23(4) A person arrested or detained— (a) for the purpose of bringing him or her before a court in execution of an order of a court; or (b) upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda,
And Section 10 of the Criminal Procedure Code: Any police officer may, without an order from a magistrate and without a warrant, arrest—
any person whom he or she suspects upon reasonable grounds of having committed a cognisable offence, an offence under any of the provisions of Chapter XVI of the Penal Code Act or any offence for which under any law provision is made for arrest without warrant.

Take
“The charges should be read out to the person at the time of arrest, so that the person know exactly what laws they have violated in the constitution thus the cause for arrest,” Abaliwano notes.
“Secondly, miranda rights also apply in this case. At the time of arresting someone, they must be informed of the reasons for which they are being arrested or detained,” he says.
“Nevertheless they can detain someone in such a fashion if they have cause to believe that they are about to or have broken the law.”

Vincent Kaggwa
On July 16, Vincent Kaggwa, 24, the spokesperson of the NRM Poor Youth Forum, was picked up by security personnel from his home in Katanga, Wandegeya.
For the next three days, friends and relatives could not trace him at any of the police stations in and around Kampala.
Recounting his ordeal, Kaggwa says his home was visited by plain-clothed operatives who said they were from the Police Flying Squad and insisted on searching his house without a warrant.

“I prevented them from getting in and immediately called for LCI chairman for Kimwanyi Zone Hassan Wasswa Ssempala to witness the search,” he says.
Kaggwa narrates that when the chairman came the operatives were then permitted to search the house in his presence. I had a pile of Amama Mbabazi branded T-shirts, caps, calendars, brochures, stickers and other campaign material.

Kaggwa adds that he was then notified that he was being arrested and was asked to come with the officers to the Central Police Station from where he recorded a statement.
“When I finished, they escorted me back into the Noah and put a red hood over my head. They drove around for quite a while. I do not know where they took me but it was night when we reached the point where they detained me,” he explains.
“It was an untidy cell. They then splashed cold water on me at an immense pressure. I was really worried for my wife and children. I was not sure whether I would see them again.”
After three days, Kaggwa was charged with inciting violence and released on police bond.

Addressing journalists upon Mr Kaggwa’s release, police spokesman Fred Enanga said Mr Kaggwa was arrested to prevent “likely breach of peace during Idd celebrations”.
“This youth group where Kaggwa is a ring leader had planned to distribute materials which were of electoral significance to people participating in Idd prayers at selected mosques and other Muslim worship centres around Kampala,” Mr Enanga said.
“It was in the interest of preserving peace that we caused the arrest of Kaggwa. This is a group that had not sought permission to organise activities.”

What the Law says;
Article 23 (5) Where a person is restricted or detained—
(a) The next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention;
(b) The next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person; and
(c) That person shall be allowed access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.
Article 24. Respect for human dignity and protection from inhuman treatment.
No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.

Take
“In Kiwanuka’s case, being hosed with cold water was out of line. Even when you are interrogating somebody, if they have not resisted, they ought to be treated in a humane way, you just do not bundle them,” Abaliwano explains.
“And the police should have informed his next of kin and lawyers immediately after arrest.”

Recourse
Depending on the law prevailing within a community, there can be many ways in which the police are monitored.
Larger cities have police commissions or police oversight committees. Smaller communities may rely on the State prosecutor to evaluate police misdeeds.
In almost all cases, complaints against police are usually investigated by their own police department.
“In Uganda’s case, it is the state attorney to handle such cases against the police. If you are arrested and handled in a way that the constitution does not condone, you can file a case with him,” he says.

However, there is a problem. In most instances these cases take long to be resolved. There are many cases against police at the attorney’s office but they take a long time.”
The constitution provides for such redress against police Article 23 (7) denotes: “A person unlawfully arrested, restricted or detained by any other person or authority shall be entitled to compensation from that other person or authority whether it is the State or an agency of the State or other person or authority.”
Abaliwano argues that in the end the best way to deal with transgressors within police is to take on the individuals rather than the institution.

“Remember the case of the journalist who brutalized a journalist and was arrested, charged and arraigned in court? That is how one should take on the police. Always try to identify your arresting officer and know your rights,” he adds.
“It is always the citizens who need to hold the police accountable for their actions, or lack of action.”