New human rights law fails on first hurdle

Sunday July 21 2019

Arrested. Police arrest Makindye West Member of

Arrested. Police arrest Makindye West Member of Parliament Allan Ssewanyana after he attempts to close Mulago Referral Satellite Hospital of Kiruddu. Section 10 of the Human Rights Act of 2019 holds public officers like police officers individually liable for violation of a person’s rights. PHOTO BY ABUBAKER LUBOWA/ FILE 

By Stephen Kafeero

On March 31, President Museveni assented to the Human Rights Enforcement Act (2019), bringing into force the much lauded law but less than four months later the instrument appears to be joining the long list of Uganda’s unimplemented excellent laws and policies.
All signs indicate, specifically, that State agents and other common violators of human rights are not in a hurry to embrace the same. On the other hand the victims either out of powerlessness or ignorance have not been as active in asserting and demanding their rights. The courts too have not been moved to pronounce themselves on the same.
The case involving the kidnapping and detention of journalist-turned-pastor, Joseph Kabuleta, was not only the first high profile test of the law but also offered a text book example of how it can be put in the dustbin.
Mr Kabuleta was on July 12 grabbed by plain-clothed security agents at around 5pm and bundled into a waiting Toyota car, registration number UBB 459D.
The security agents who grabbed him neither presented an arrest warrant, identified themselves nor informed him of the reason for his arrest. The agents did not use official police force vehicles but he ended up in police custody.
Like many suspects detained at police stations across the country, he was still in custody and police was yet to give him a bond pending formal charging 48 hours. Also, police did not say his whereabouts.
On July 16, four days after he was kidnapped, Kabuleta’s lawyers petitioned the Civil Division of the High Court seeking orders compelling the commandant of the Special Investigations Unit Kireka, Elly Womanya, Inspector General of Police Martins Okoth-Ochola and the Attorney General William Byaruhanga to produce their client in court.
The application was supported by an affidavit by Mr Kabuleta’s wife, Rebecca Kabuleta. In her affidavit, Ms Kabuleta contended that her husband is illegally locked up in Kireka. She further said that she is sure that the detention of her husband is unconstitutional because it amounts to human rights violation.
She said that ever since Kabuleta was arrested police had blocked his lawyers, doctors and next of kin from accessing him. Ms Kabuleta asked court to direct government and police to produce her husband in court and show cause why his liberty has been violated.
Shortly after court was petitioned, police announced they had released Mr Kabuleta on a police bond pending a review of his file by the Directorate of Public Prosecution (DPP). This was more than 96 hours since his kidnapping and subsequent detention.
Lawyer Daniel Walyemera, representing Mr Kabuleta who was charged under Section 25 of the Computer Misuse Act, said police decided to release his client to beat the habeas corpus application scheduled for hearing before Justice Musa Ssekana the following day.
On July 9, just two days before Mr Kabuleta was grabbed, IGP Okoth-Ochola had put his men on notice about the Human Rights (Enforcement Act 2019).
“Going forward,” he said “the entrenchment of human rights in police work will never be an option...”
He added: “The common human rights violations by police that have been documented over the years include, but not limited to, detention of suspects beyond 48 hours, torture, denial of a right to a fair hearing (access to a lawyer, corruption, delayed prosecution)”.
Besides instructing his commanders “to ensure that the observation of human rights is adhered to without fail” in all their areas of operation, Mr Ochola cautioned his men.
“Important to note is that responsible officers will now be required to personally incur the cost of compensation in the event of an award by court...” the circular says.
Section 10 of the Human Rights (Enforcement) Act of 2019 holds public officers like police officers individually liable for violation of a person’s rights or freedoms committed either individually or in a group. The law states that individual officers shall pay a portion of the compensation as has been ordered by the court.
Earlier, in February, the police launched its first ever Human Rights Policy which catalogues different laws which gives the police force mandate and tries to align them to the different national, regional and international human rights treaties.
At the launch, Mr Ochola, who has been very vocal about human rights compared to his predecessor Gen Kale Kayihura, said the policy will strengthen and ensure human rights are observed during police operations.
While Mr Ochola’s pronouncements on human rights have been a clear departure from his predecessor who at one time openly supported the beating of civilians, the general approach to human rights by the police has, largely, remained the same.
For Eron Kiiza, a human rights lawyer, the issue is not about good laws but implementation.
“The new law is great in many ways, but it will take more than good laws to ensure respect for our freedoms. The new law is great but minus the will to enforce, it will not help us,” he said in an interview.
Anthony Masake, a lawyer at Chapter Four Uganda, a human rights organisation, applauds the circular by IGP Ochola to police officers but says it only restates the law.
“Given the current structure of law enforcement in the country, it is a load of hot air as far as commitment from the Force is concerned. The increased engagement by army officers in police and law enforcement work is a major concern because police cannot account for all policing work in the country. Kabuleta’s arrest is an example,” he says.
On April 30, Ms Nana Annette Namata through her lawyers wrote to IGP Ochola demanding the identities of the police officers, including Constable Margret Alupo who she said had assaulted her at the police headquarters on April 24.
Following the incident, Ms Nana was hospitalised and has since had her uterus removed because of intense bleeding while giving birth following an alleged injury she suffered after police assaulted her.
The lawyers of Wameli & Co Advocates also asked police authorities to furnish them with details of actions taken, if any, following the incident.
A lawyer following up on the case told Sunday Monitor that the police is yet to respond to the letter.
“The Human Rights Enforcement Act can only be effectively applied if the police and the army open up on the identity of any alleged perpetrators from within the forces. Neglecting or refusing to disclose names of officers for criminal prosecutions, like we have seen in the past cases such as Kabuleta’s or Nana’s torture, frustrates legal action against the individual officers,” Mr Masake says.
The 9th Parliament, in 2012, established the Human Rights Committee to, among other things, monitor all matters relating to human rights and government’s observance of human rights in the country.
Safia Nalule Juuko, the deputy chairperson of the committee, says there are very many legal instruments and the human rights enforcement law is just a supplement.
“With human rights, a lot of awareness has to be done continuously. You will be surprised that they could be some law enforcement officers who are not even aware of the anti-torture Act and then the human rights enforcement law,” she says.
The ruling NRM legislator (People with Disabilities) says it is the duty of every citizen to ensure that the human rights enforcement law is observed by the law enforcement officers and that if anyone is in the wrong they are held liable with the full participation of the concerned communities to see to it that justice is done.

Other cases
Mr Kabuleta’s case is not in isolation. On March 19, the International Crimes Division of the High Court released on bail eight suspects accused of murdering former Assistant Inspector General of Police Andrew Felix Kaweesi. To date the suspects remain in jail despite the court’s directive.
The eight suspects, who have spent more than two years in detention, include; Abdurashid Mbaziira, Noordin Higenyi, alias Taata Abdallazak, Yusuf Mugerwa, alias Wilson, Bruhan Balyejusa, alias Jimmy Masiga Ogutu, Joshua Magezi Kyambadde, alias Abdu Rahman, Jibril Kalyango, alias Abu Aisha, Yusuf Siraje Nyanzi, alias Jimmy Ssentamu, and Shafik Kasujja.
They are also subject to a ruling by High Court judge Margaret Oguli-Oumo, who ordered government to pay them and others Shs1.7b in damages for torturing them while in police detention.
Section 15(2) of the Human Rights (Enforcement) Act of 2019 states that where “a person in charge of a prison, police station or any other gazette detention facility shall, where he or she has reason to believe that a person in that prison, police station or detention facility is unreasonably being detained, release or apply to the competent court or any other authority for authorisation to release that person from detention”.
Section 15(4) of the Act lists a number of situations in which a person is deemed to be unreasonably detained, including detention beyond 48 hours after arrest without being brought before a competent court, being charged with an offence triable by a subordinate court and remanded in custody before trial for a period exceeding 120 days.
Other instances relate to being charged with an offence triable by the High Court and remanded in custody for a period exceeding 360 days before the case is committed to the High Court for trial or being committed for trial to the High Court and remanded without trial for a period exceeding half of the period of imprisonment he or she would be liable to if he or she was to plead guilty or be convicted of the offence.
Also if the procedure leading to one’s detention was irregular or unlawful, there are no justifiable reasons for his or her continued detention, his or her non derogable rights have been infringed upon and his or her continued detention amounts to a miscarriage of justice.
More than 170 suspects have been in detention since November 26, 2016, when the army raided the Rwenzururu Kingdom palace and other areas in Kasese leaving more than 100 dead. The suspects in detention, who included at one point minors, have at various stages of their trial had their rights violated which one of their lawyers says makes a mockery of the human rights enforcement law.
“They were tortured, their trial delayed contrary to the constitutional entitlement to a speedy trial, their right to effective remedy has been denied as police defied the court orders to investigate torture,” Mr Kiiza says.
Article 44 of the Constitution provides for certain fundamental human rights which cannot be taken away under whatever circumstance. These are called non-derogable rights and include freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude; the right to fair hearing and the right to an order of habeas corpus.

The law

Section 15(2) of the Human Rights (Enforce-ment) Act of 2019 states that where “a person in charge of a prison, police station or any other gazette detention facility shall, where he or she has reason to believe that a person in that prison, police station or detention facility is unreasonably being detained, release or apply to the competent court or any other authority for authorisation to release that person from detention”.

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