Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
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.