Johnathan Kiwana: "48 Hour Rule: Right to Privilege; The Judiciary Should Let Us Know!"

There are exciting young voices coming out of Africa. They are especially strong in those areas where Africa is usually considered the perpetual student--Constitutional law and practice high among them. It has been my great pleasure to get to know some of these young lawyers during the course of their post graduate studies at Penn State.

I am delighted to highlight some of their work form time to time. For this post I include an excellent short essay, "48 Hour Rule: Right to Privilege; The Judiciary Should Let Us Know! which follows below. It considers constitutional implications of a 48 hour detention rule in Uganda.

Jonathan is currently an LLM Candidate at Penn State Law. Prior to this Jonathan practiced law with the Kampala office of Bowmans, a corporate commercial law firm operating across Africa. His practice majorly entails legal and transactional advice to financial institutions, fin-techs, multi-nationals and energy companies on their operations in East Africa. While practicing Corporate-Commercial law, Jonathan maintains a keen interest in matters of Constitutional Law, Human Rights and Social Justice. He has previously interned with the United Nations International Criminal Tribunal for Rwanda and volunteered with International Justice Mission advocating for property rights of widows in rural Uganda.

Jonathan is licensed with the Ugandan bar and a member of Uganda Law Society and the East African Law Society. He has also published an anthology entitled ‘Muselings; A Young man’s Meditations on Life, People and Growing up’ and several newspaper articles.

48 HOUR RULE: RIGHT OR PRIVILEGE; THE JUDICIARY SHOULD LET US KNOW!

Jonathan Kiwana

In spite of the Constitutional requirement to have a suspect charged within 48 hours of being detained, security agencies in Uganda, in total disregard of the law, often unjustifiably detain suspects for more than 48 hours. To remedy this unfortunate state of affairs, the Judiciary ought to take a more pro-active stance as regards compliance with the 48 Hour Rule.

Article 23 of the Constitution of Uganda[1] spells out the right to personal liberty under Ugandan law. Clause 4 (b) of the same Article[2], provides that a person who is arrested or detained upon reasonable suspicion of 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 any case not later than forty-eight hours from the time of arrest. This provision, commonly referred to as the ‘48-Hour Rule’, is an adaptation of Article 9 of the International Covenant on Civil and Political Rights[3] which Uganda has ratified[4]. This 48 Hour Rule is generally understood to be one of the safe guards against arbitrary detention which is a profound threat to liberty and to the enjoyment of all other rights[5].

In spite of the foregoing however, there has been and continues to be such a wanton disregard of the constitutional provision by the security agencies in Uganda that one wonders whether the constitutional provision is really a right/command or merely a suggestion. The latest victim of this abuse, ironically, is former head of the Uganda Police Force General Kale Kayihura who last month was arraigned in Court charged with two counts of “failing to protect war materials” and one count of “aiding and abetting kidnapping from Uganda” of Rwandan nationals while he was Inspector General of Police. His arraignment came after he had been detained for 72 days (1,728 hours) at a military barracks in the suburbs of Kampala[6]. The Uganda Human Rights Commission, the body mandated by the Constitution of Uganda to protect and promote human rights in Uganda[7], in its 2015 report[8] observed for the fourth year running that the highest percentage of complaints made to it were against the Uganda Police Force concerning detention beyond the Constitutional 48 hours[9]. In its 2016 report, the Uganda Human Rights Commission reported that of the 4277 Human Rights complaints received, 27.17% of these pertained to detention beyond 48 hours[10].The United States Department of State Country Report on Human Rights Practices for 2016[11] reported that in spite of the 48 Hour Rule, suspects in Uganda are ‘frequently’ detained for more than 48 hours without being charged. In extreme situations, there have been instances where suspects have been detained for up to even two years without being charged[12]. The Uganda Police Force has often explained that this delay in charging suspects is as a result of administrative challenges such as shortage of police officers to timeously prepare charge sheets to present in Court. In as much as the Police Force suffers several administrative challenges, I doubt any of these can warrant a delay in charging a suspect for up to two years and as such this is more of an issue of lawlessness as opposed to incapacity.

Under Article 50 of the Constitution of Uganda[13], any person who claims that a right or freedom guaranteed under the Constitution has been infringed or threatened, is entitled to apply to the High Court of Uganda for redress which may include compensation[14]. Similarly, under the Uganda Human Rights Commission Act[15], an aggrieved person may file a complaint before the Uganda Human Rights Tribunal seeking the release from detention, payment of compensation or any other legal redress. In as much as these are good mechanisms to redress the abuse of Human Rights, it is my contention that they are inadequate to address the perennial disregard of the 48 Hour Rule and the Judiciary ought to lead the way in dealing with this abuse.

It has long been held[16] that part of the duty of the Judiciary in any democratic society is to oversee executive action and that in doing so, whenever the Judiciary encounters behavior that threatens either basic Human Rights or the rule of law, it ought to condemn this behavior in the most unequivocal terms. In my opinion, in regard to the 48 Hour Rule, the Judiciary in Uganda has failed in this duty. The most recent incident of this failure by the Judiciary was in the case of Bernard Otim v Uganda[17]. In this case, the accused was arrested for allegedly soliciting and receiving a gratification and thus committing offences under the laws of Uganda[18]. He was detained for fourteen days after which he was charged in Court. During trial, the accused raised a constitutional question as to whether the pre-trial violations of constitutional rights of an accused person render a subsequent criminal trial a nullity. The Constitutional Court held that the violations in question did not warrant nullification of the trial and pointed out that the accused could seek damages for the violations he had suffered[19]. It was the Court’s reasoning that a trial only starts after one is charged and therefore, any abuses suffered before one is charged cannot lend credence to the argument that one has been subjected to an unfair trial. In holding thus, the Court distinguished this case from an earlier one; Dr. Kizza Besigye v Attorney General[20] (“the Kizza case”) where the court held that a trial tainted with violation of constitutional rights is a nullity[21]. The court in distinguishing the two cases explained that unlike in the Kizza case, the Applicants had suffered abuses after being charged and that the kind of abuses suffered in the Kizza case were so grave that no subsequent trial could be fair. Essentially, the position of the Court seems to be that one must suffer abuse after being charged and even then one must be “prejudiced enough” for one’s trial to be nullified.

It is my submission that the Court ought to have taken a more pro-active stance. The Court should have perhaps established a ‘litmus test’ setting out criteria to determine instances when one has been “prejudiced enough” something akin to the balancing test set out in the American case, Baker v Wingo[22]. Courts in Kenya require that the State justify the violation of the rights of one detained beyond the Constitutional time and where the Court in its discretion finds that the violation was unwarranted, it will nullify the trial regardless of the weight of the evidence against the accused[23]. This I submit is a more appropriate position as it takes into account administrative hurdles but also demands accountability of prosecution authorities and in so doing balances out the rights of individuals and the welfare of society.

In conclusion, it is my averment that the Constitutional Court ought to revisit its position as regards compliance with the 48 Hour Rule and adopt the position in Kenya requiring the State to either justify the violation of the 48 Hour Rule or risk having a trial nullified and with damages to the victim. This I believe will buttress the 48 Hour Rule as a fundamental right that ought to be observed.

NOTES:

[1]Constitution of the Republic of Uganda available at: http://www.statehouse.go.ug/sites/default/files/attachments/Constitution_1995.pdf (Last accessed 30.11.17).

[2] Ibid

[3]Available at: http://www.hrweb.org/legal/cpr.html (Last accessed 30.11.17)

[4] List of the Nations that have ratified the International Covenant on Civil and Political Rights available at: http://indicators.ohchr.org/ (Last accessed 30.11.17)

[5] http://ccprcentre.org/page/112nd-session-in-brief/the-new-general-comment-on-the-right-to-liberty-and-security-of-persons-clarifies-the-limits-of-the-detention

[6] See Monitor Newspaper Article available at http://www.monitor.co.ug/News/National/kale-Kayihura-day-court-martial-/688334-4728402-19fcgo/index.html (Last accessed on 09.14. 18)

[7] Articles 51- 54 of the Constitution of the Republic of Uganda Supra 1

[8] Available at http://www.uhrc.ug/ (Last Accessed on 01.12.17).

[9] Also see R. Karugonjo- Segawa: Pre-Trial Detention in Uganda; APCOF Policy Brief No. 4 Available at http://www.apcof.org/policy-papers/ (last accessed on 01.12.17)

[10] Uganda Human Rights Commission Report, 2016 available at: http://www.jlos.go.ug/index.php/news-media-events/newsroom/latest-news/item/560-18th-annual-uhrc-report-the-state-of-human-rights-in-uganda (Last Accessed on 01.12.17)

[11] United States Department of State Country Report on the State of Human Rights Practices for 2016 available at: https://www.state.gov/documents/organization/265526.pdf

[12] See Uganda v Sekabira & 10 Others High Court Criminal Case No. 85 of 2010 available at : https://ulii.org/node/18022

[13] Supra 1

[14] Supra 1

[15] Human Rights Commission Act Cap. 24 Available at https://www.ulii.org/

[16] Albanus Mawisa Mutua v Republic Criminal Appeal No. 120 of 2004 at Page 4 and Lord Griffiths in R v Horseferry Road Magistrate Ex parte Bennet [1994] 1 A.C. 42

[17] Constitutional Reference No. 35 of 2010

[18]Section 2(a) of the Anti-Corruption Act, 2009 (Available at https://www.ulii.org/ug/legislation/act/2015/6-4)

[19] Article 50 of the Constitution of Uganda, Supra 1.

[20] Constitutional Petition No. 7 of 2007 (Available at http://www.ulii.org/ug/judgment/constitutional-court/2010/6)

[21] Page 4-5 Bernard Otim v Uganda Supra 15.

[22] 407 U.S. 514 at 530.

[23] Republic v Amos Karuga Karatu High Court Criminal Case No. 12 of 2006 and Albanus Mwasia Mutua v Republic supra.