Practice Relating to Rule 99. Deprivation of Liberty
Uganda’s Geneva Conventions Act (1964) punishes “any person, whatever his nationality, who, whether within or without Uganda commits or aids, abets or procures the commission by any other person of any grave breach of the [1949 Geneva] Conventions”.
Uganda’s National Resistance Army Statute (1992) provides for the punishment of a person subject to military law who unnecessarily detains any other person without bringing him or her to trial.
Uganda’s Defence Forces Act (2005) provides that any “person subject to military law, who … unlawfully detains any other person in arrest or in confinement” commits an offence.
In 2003, in its initial report to the Human Rights Committee, Uganda stated:
216. The right to liberty and security of person is enshrined in Uganda’s domestic legislation. Article 23 of the Constitution provides that no person shall be deprived of personal liberty except in the following cases –
(a) in execution of the sentence or order of a court whether in Uganda or another country or of an international court or tribunal in respect of a criminal offence of which that person has been convicted; or of an order of a court punishing the person for contempt of court;
(b) in execution of the order of a court made to secure the fulfilment of any obligation imposed on that person by law;
(c) for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that the person has committed or is about to commit an offence under the laws of Uganda;
(d) for the purpose of preventing the spread of an infectious or contagious disease;
(e) in the case of a person below 18 years, for the purpose of the education or welfare of that person;
(f) in the case of a person who is reasonably suspected of being of an unsound mind or addicted to drugs or alcohol, for the purpose of the care and treatment of that person or the protection of the community;
(g) for the purpose of preventing the unlawful entry of that person into Uganda or for the purpose of effecting expulsion, extradition or other lawful removal of that person from Uganda;
(h) as may be authorised by law, in any other circumstances similar to any of the cases specified in paragraph (a) to (g) above.
217. Every individual in Uganda therefore has a constitutional protection as to personal liberty and a person will not be deprived of his or her liberty or be arrested or detained except as authorised by law.
The report further stated:
226. It is a pre-condition of lawful arrest that the person arrested should know the nature of the charge or suspicion for which he is arrested. And it is the duty of the person arresting to inform the arrested person the reasons for the arrest unless, of course, the arrested person creates a Situation whereby it would be impossible to inform him, say, by a counter-attack or by running away.
The Uganda People’s Defence Forces (UPDF)
232. In 1998, the Commission received and investigated 36 complaints against the UPDF, 20 of which alleged deprivation of person liberty. A clear pattern emerged indicating that the army had arrested a number of people, detained them for long periods, and released them without trial. This is contrary to the law. First, the army as an institution has no legal powers to arrest.
Second, army installations are not gazetted places of detention. Finally, this is contrary to the law because many people were detained for long periods without appearing before any court of law.
In 2003, in its initial report to the Human Rights Committee, with reference to the Constitution of the Republic of Uganda, Uganda stated that “where a person is restricted or detained under a law made for the purpose of a state of emergency”:
Not more than thirty days after the commencement of restriction of his or her restriction or detention, a notification shall be published in the gazette and in the media stating that he or she has been restricted or detained and giving particulars of the provisions of law under which his or her restriction or detention is authorised and the grounds of his or her restriction or detention.
In 2003, in its initial report to the Human Rights Committee, with reference to the Constitution of the Republic of Uganda, Uganda stated that “where a person is restricted or detained under a law made for the purpose of a state of emergency”, that person “shall within twenty four hours after the commencement of the restriction or detention, be furnished with a statement in writing specifying the grounds upon which he or she is restricted or detained”.
The report further states:
It is a pre-condition of lawful arrest that the person arrested should know the nature of the charge or suspicion for which he is arrested. And it is the duty of the person arresting to inform the arrested person the reasons for the arrest unless, of course, the arrested person creates a Situation whereby it would be impossible to inform him, say, by a counter-attack or by running away.
Uganda’s National Resistance Army Statute (1992) provides for the punishment of the person subject to military law who fails to bring a detained person’s case before the proper authority for investigation.
Uganda’s Defence Forces Act (2005) provides:
190. Report of delay of trial
(1) Where a person triable under military law has been placed under arrest for a service offence and remains in custody for forty-eight hours without his or her trial by a military court having commenced, his or her commanding officer shall make a report to the Service Chief of Personnel and Administration and the Services Chief Political Commissar stating the reasons for delaying the trial and shall release the prisoner on a conditional bond after seventy two hours.
(2) A person held in custody in the circumstances mentioned in sub-section (1) who has been continuously so held for twenty eight days without commencement of his or her trial by a military court, may, at the expiration of that period, petition the President or such other authority as the President may appoint in writing for that purpose, to be released from custody or for the disposal of the case.
(3) A person held in custody in the circumstances mentioned in sub-section (1) shall be freed by his or her commanding officer when a period of ninety days continuous custody from the time of arrest has expired unless his or her trial by a military court has commenced.
(6) The conditional bond under subsection (1) and subsection (3) shall not apply in the case of a person held in custody for the purpose of trial for an offence punishable with death or a term of imprisonment exceeding five years.
Uganda’s ICC Act (2010) states: “A person arrested under section 26 [Request for arrest and surrender] or 29 [Provisional arrest] shall be brought before a Registrar [of the High Court] within 48 hours.”
In the Cherop case before the Uganda Human Rights Commission at Kampala in 2004, the complainant was a sergeant of the Uganda People’s Defence Forces (UPDF) who was detained by the UPDF intelligence after allegedly “disappearing with a firearm”. The Commission stated:
According to the evidence, Jackson Cherop was detained from February 17, to March 28, 2000 which is a period of 39 days. Article 23(4) of the Constitution provides as follows:
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 any case not later than forty-eight (48) hours from the time of his or her arrest.
The detention of Cherop for 39 days without charge in a Court of law breached this constitutional provision and was therefore illegal and a violation of his right to personal liberty. In the same vein it constituted a violation of his right to personal liberty because the detention violated the procedural rights guaranteed by Article 23 which is that persons detained on suspicion that they have committed an offence must be charged within forty-eight hours.
Uganda’s Defence Forces Act (2005) provides that any “person subject to military law, who … unnecessarily detains any other person without bringing him or her to trial, or fails to bring that other person’s case before the proper authority for investigation” commits an offence.
Uganda’s ICC Act (2010) states:
30. Rights of arrested person.
(1) A person arrested under section 26 [Request for arrest and surrender] or 29 [Provisional arrest] shall be brought before a Registrar [of the High Court] within 48 hours.
(2) The Registrar before whom the person is brought may, of his or her own volition or at the request of the person determine –
(a) whether the person was lawfully arrested in accordance with the warrant; and
(b) whether the person’s rights have been respected.
(3) In making a determination under subsection (2) the Registrar shall apply the principles applicable to judicial review.
(4) If the registrar determines that –
(a) the person was not lawfully arrested; or
(b) the person’s rights were not respected,
the Registrar shall make a declaration to that effect with any explanation required but may not grant any other form of relief.
(5) The Registrar shall transmit any declaration made under subsection (4) to the Minister, and the Minister shall transmit it to the ICC.
In 2003, in its initial report to the Human Rights Committee, Uganda stated that there are “certain Rights that cannot be derogated from and these include … right to an order of habeas corpus”.
With reference to Article 48(1) of the Constitution of Uganda, the report stated that “where a person is restricted or detained under [emergency laws] the Uganda Human Rights Commission shall review the case not later than 21 days after the commencement of the restriction or detention and after that at intervals of not more than 30 days.”
The report further states:
112. On a review of the case, the Uganda Human Rights Commission may order the release of that person or uphold the grounds by the restriction or detention. Aggrieved persons may also enforce their rights and freedoms in courts of Law in accordance with Article 50 [of the Constitution of Uganda].
250. Under Article 23 (9) of the Constitution, the right to habeas corpus is inviolable and shall not be suspended. Under section 36 of the Judicature Statute, 1996, the High Court may at any time where a person is deprived of his or her personal liberty otherwise than in execution of a lawful sentence, upon complaint made to it by the arrested person or his agent, the High Court shall direct the person in whose custody the arrested person is to produce the detained person in court and shall inquire into the reason for the detention.
In addition, the report stated:
473. It is important to note that … there are areas where derogation is not acceptable under whatever circumstances. They are under article 44.
474. Article 44 of the Constitution of the Republic of Uganda (1995) states that:
Notwithstanding anything in this Constitution, there shall not be derogation from the enjoyment of the following rights and freedoms:
(a) freedom from torture, cruel, inhuman or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) right to fair hearing;
(d) right to an order of habeas corpus.