Carry your torture cross, court tells Gen Kayihura

Uganda’s highest court on constitutional matters has, in a landmark ruling, declared that torture charges filed several years ago against former Inspector General of Police, Gen Kale Kayihura and fellow senior officers were valid and can still stand.

Delivering its unannounced verdict four months ago in March, the Constitutional Court turned down an attempt by a city lawyer to shield the senior police officers from trial on grounds that their constitutional rights would be violated. 

The precedent-setting finding, however, now makes it possible to reopen a seven-year-old private prosecution of the accused officers, including the General, who is expected to retire from the army next week. 

If reopened, the case would also be the first time for senior security personnel to be dragged to court for violently breaking up an Opposition political meeting and allegedly torturing their supporters.

That possibility would bring some relief to Uganda’s Opposition fraternity who continue to struggle under the often brutal repression of their legitimate political activities by the country’s generally pro-regime security services.

On another front, the ruling equally drags the Office of the Director of Public Prosecutions into the spotlight -- for taking over the private prosecution in 2016, only to withdraw the torture case.

At the heart of this matter is a case in which supporters of Opposition stalwart, retired Colonel Dr Kizza Besigye were allegedly tortured as police violently dispersed political gatherings they attended between July 13 and July 14, 2016.

Daily Monitor has obtained a copy of the ruling on Constitutional Petition No. 27 of 2016, which declares that public officers who commit acts of torture cannot be shielded from criminal liability. 

In it, all five Constitutional Court judges agreed that a police officer cannot hide behind his or her constitutionally-sanctioned policing functions to justify acts of torture.

Judges Fredrick Egonda Ntende, Elizabeth Musoke, Christopher Madrama, Monica Mugenyi and Christopher Gashirabake were unanimous in the ruling which now opens up the former police bosses to fresh prosecution.

Seven years ago in July 2016, the Chief Magistrates Court at Makindye had issued criminal summons against Gen Kayihura, seven senior police commanders in charge of operational units across Kampala, and an unstated number of other policemen. 

Summons were issued after two law firms; Namugali & Walyemera Co Advocates and Lukwago & Co Advocates, acting for the alleged victims, sued the police chiefs as private prosecutors.

Those summonses are believed to have prompted city lawyer, Mr Robert Rutaro to then petition the Constitutional Court, naming the Attorney General as a respondent and challenging the suit as being unconstitutional. It is not known whether Mr Rutaro’s actions were unilaterally decided, or whether he was acting at the instigation of the accused.

He nonetheless claimed in his petition that various sections of the Prevention and Prohibition of Torture Act, 2012, under which the matter was brought, contravened the Constitution.

But any allegations of unconstitutionality have now been swept away by the ruling, with the court declaring that the use of reasonable force in normal policing functions, as allowed under the Police Act, cannot be invoked to justify the criminal offence of torture.

Under Section 4 of the anti-torture law, a person found guilty of committing acts of torture faces a maximum sentence of 15 years in prison or a fine of 360 currency points (Shs7.2 million), or both.

A maximum sentence of life imprisonment can be handed down by the courts if an accused person is found guilty of aggravated torture, where it is proved that the offender used or threatened to use a deadly weapon, among others. 

Gen Kayihura was jointly charged with the then Kampala East Regional Police Commander Andrew Kaggwa; then operations commander for Kampala Metropolitan Police James Ruhweza; the then overall commander of the police’s Field Force Unit (FFU) Samuel Bamuziibire and then officer in charge of FFU Kampala Metropolitan South, Mr Patrick Muhumuza.

Other co-accused were the then police commander for Kampala North Wesley Nganizi and his deputy at the time, Geoffrey Kahebwa along with the then Wandegeya Division Police Commander Moses Nanoka.

Almost all of these officers were removed from their positions and redeployed following the sacking of Gen Kayihura as police chief in March 2018.

Their days in the Force now hang in the balance after the March ruling, which said they were properly charged under the Prevention and Prohibition of Torture Act, 2012 at Makindye magistrate court.

The Constitutional Court declared that criminal conduct by officials during the performance of duties is “actionable”.

“The question of whether a person is personally liable is a question of fact. It is not based on vicarious liability and there is no lawful order to commit any offence, it will be the defence to show that the official or officials never participated in the commission of the offence,” the court ruled.

In the lead judgement, Justice Gashirabake held that there is no constitutional immunity granted to police officers to commit torture, acknowledging the Attorney General’s argument that “criminal offences by their nature attract individual responsibility”. 

The justices reasoned that the government has no official policy in support of torture, and that torture is save for exceptional cases, unnecessary for the efficient exercise of public duties and also that torture cause immense suffering and is unconscionable. 

The court declared that police officers must perform their policing duties with integrity, without intimidating or coercing anyone to provide information.

“Police officers as law enforcement officials ought to respect and protect human dignity. They are required to maintain and uphold the human rights of all persons, protection from torture inclusive. Law enforcement institutions are entrusted with a diverse set of tasks requiring a high degree of integrity within police agencies and their oversight,” the court observed. 

Yesterday, Dr Daniel Walyemera, one of the lawyers who represented the victims at Makindye magistrate’s court, told this newspaper they will be reopening the torture suit.

“The Director of Public Prosecutions (DPP) took over the private prosecution and withdrew the criminal charges that we had instituted. The DPP is supposed to have sought the court’s consent to withdraw the criminal charges against Gen Kayihura and the seven senior police officers,” he said.

It added: “without the court’s consent, the DPP’s withdrawal has no legal effect. The criminal charges can be reinstated”.

“An NGO is now finding out from the court whether the court consent was procured by the DPP before the criminal charges were withdrawn as required by Article 120(3) of the Constitution. If the court record does not reflect consent, the private prosecution will be reinstated considering that torture is an international crime. Perpetrators of torture must be held accountable regardless of their position in society.” 

The July 21, 2016 charge sheet issued by Makindye magistrate’s court said that the named police officers, being superior in the Force, are liable for acts of torture committed against Joseph Kaddu, Andrew Ssebitosi, Rogers Ddiba and other members of the public, including boda boda riders and supporters of Dr Besigye.

The accusations arose from acts the accused persons allegedly committed while dispersing supporters of Dr Besigye, who was a presidential candidate in the 2016 election running on a ticket of the Opposition Forum for Democratic Change party.

Summary of findings in Kayihura torture petition

On July 21, 2016, the Chief Magistrate’s Court in Makindye, Kampala, issued criminal summons for Gen Kale Kayihura, the former Inspector General of Police, seven other senior police officers and other police officers at large to appear before it on August 10, 2016. The named individuals were summoned to answer charges of torture. 

However, before the proceedings could get underway, a city lawyer, one Mr Robert Rutaro petitioned the Constitutional Court, naming the Attorney General as a respondent and seeking to stop the trial.

He claimed that a private prosecution of the accused persons would be unconstitutional. The torture matter had been filed for prosecution by two city law firms acting on behalf of the alleged torture victims.

The Constitutional Court handed down its verdict in March this year, dismissing Mr Rutaro’s petition in a unanimous ruling. 

Below is a summary of four of the five issues which were considered during hearings.

Issue one 
Whether sections 2,7,8,9,10,12 and 13 of the Prevention and Prohibition of Torture Act 2012 are inconsistent with and contravene Articles 2,20(1) and (2); 28(1); (3)(a-g); (5), (7) and (12); 44(c) 213, 250(2) of the Constitution. 

Broadly, the above articles speak to fundamental rights, fair trial, the functions and command of the Uganda Police Force.

It was submitted for the petitioner that the right to a fair trial under Article 28(3)(b) ad (c) is non-derogable.

It requires that every person who is charged with a criminal offence shall be informed immediately, in a language that the person understands, of the nature of the offence and be given adequate time and facilities for the preparation of his or defence.

The petitioner averred that the charge sheet was defective and vague. But the Attorney General noted that the petitioner’s analysis and interpretation of the sections was flawed and incorrect as the relevant laws governing court procedure say proceedings shall not be invalidated merely due to a defective charge sheet. Courts, it was held, also enjoy the power to amend charges during proceedings. 

Issue two
Whether the act of charging the senior police officers in their individual capacities for acts and omissions committed in the course of duty while executing their constitutional mandate of keeping law and order as well as protecting persons and property is inconsistent with and contravenes Articles 2,119,211,212,213, 250(1) and (2).

Counsel for the petitioner submitted that police officers are servants of the state and the state is the master in whose interest and on whose behalf the police work.

That the officers charged were purely doing and exercising their duties and responsibilities as provided for under the law in dispersing a riotous unlawful assembly.

And that Section 36 of the Police Act gives the police officers power and authority to disperse an unlawful assembly after it has been ordered to be terminated. In reply counsel for the respondent submitted that the Prevention and Prohibition of Torture Act covers offences of torture and not civil wrongs, criminal offences by their nature attract individual responsibility.

It was further submitted that Articles 119 and 250 of the Constitution specifically deal with the role of the office of the Attorney General in civil matters and not criminal matters.

“Torture cannot be justified as an act of policing,” the Attorney General responded.

Court held that there is no constitutional immunity granted to such officers. The Prevention and Prohibition of Torture Act puts in place provisions to implement a constitutional order against torture, cruel, inhuman and degrading treatment. The government has no official policy in support of torture and that torture is, save for exceptional cases, unnecessary for efficient exercise of public duties and also that torture causes immense suffering and is unconscionable. It was further held that where an identifiable public officer commits acts of torture (as it is presumed the senior police officers did in this case), they should not be shielded from criminal liability.

Issue three
Whether the trial of persons under Section 12(1)(c) and Section 13(2) of the Prevention and Prohibition of Torture Act 2012 is inconstant with and contravenes Articles 2, 120(3), (4),(5) and (6) of the Constitution to the extent that a prosecution initiated by any other person (a private individual not being the DPP) is without the constitutional safeguards against abuse of legal process and is discriminatory

Counsel for the petitioner submitted that Article 120 of Constitution establishes the office of the DPP with functions, including to institute criminal proceedings against any person or authority.

Court agreed with the Attorney General where he argued that there are constitutional safeguards against abuse of process in the same article, among other measures, including the powers of the DPP to take over and stop private prosecution and the proceedings at any stage.

This safeguard is in addition to other pre-trial measures and procedures with the consent of court.  The respondent also indicated that the point was moot since, the DPP took over the case and had the charges withdrawn.

Court held that the impugned sections 12(1)(c) and 13(2) are consistent with Article 120(5) and (6). The constitutional safeguard is in the fact  that the DPP can take over proceedings at any stage under section 13(1)(a) and (b). 

Issue four
Whether the act of charging the above-named officers under the Prevention and Prohibition of Torture Act 2012 with acts of torture allegedly committed in 2011 before the Act came into being contravenes and is inconsistent with Articles 2,28(7) and (12) of the Constitution. 

Counsel for the petitioner had submitted that the acts complained of occurred between 2011 and 2016 yet the Prevention and Prohibition of Torture Act came into force in 2012. 

Counsel for the petitioner cited Article 28(7) and (12) which prohibits retrospective application of the law. Quoting authorities which hold that there is a time-honoured common law presumption that a statute does not have retrospective effect, and that there is “the general presumption that legislation should not be treated as changing the substantive law in relation to events taking place prior to legislation coming into force”, the petitioner sought to stop the trial.  However, it was established by the Constitutional Court that the alleged acts of torture are said to have taken place on July 13 and July 14, 2016. Therefore, the court said the accused persons were properly charged under an existing law. “It is common knowledge,” the court said, “that the Act came into effect on September 18, 2012”.

Ruling
The question of whether a person is personally liable is a question of fact. It is not based on vicarious liability and there is no lawful order to commit any offence, it will be the defence to show that the official or officials never participated in the commission of the offence,” court 

Jail time
Under Section 4 of the anti-torture law, a person found guilty of committing acts of torture faces a maximum sentence of 15 years in prison or a fine of 360 currency points (Shs7.2 million), or both.