Access to Justice for Forced Migrants - Center For Forced Migrants

The 48-hour rule: A cornerstone of Justice!

Refugee Law Project Access to Justice for Forced Migrants 29 June 2021

In this blog I opine that the “48 hours in detention” should include weekends and public holidays, for the wording is unambiguous; 48 hours from the time of the arrest.

The right to personal freedom from arbitrary arrest, enshrined in Articles 3 and 9 of the Universal Declaration of Human Rights, is one of the most fundamental human rights, affecting as it does vital aspects of an individual’s physical freedom. The grounds for deprivation of a person’s liberty are circumscribed in law, as stipulated in Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). As a signatory to the ICCPR, Uganda domesticated the right to personal liberty under Article 23 of the 1995 Constitution. The circumstances under which this right might be curtailed are also well spelt out, and include reasonable suspicion that a person has committed or is about to commit a criminal offence under the laws of Uganda; execution of a sentence or order of the Court; and prevention of the spread of infectious or contagious disease,[1] among others.

Therefore, an arrest is a ground on which personal liberty may be deprived. But under what circumstances is one arrested, and what happens after an arrest? Under Ugandan law , if there is reasonable cause to suspect that a person has committed or is about to commit a crime,[2] the Uganda Police Force has the power to arrest a suspect with or without a warrant. A suspect arrested on suspicion of having committed a crime should after that be informed in a language that they understand, of both the reason for their arrest or detention and their right to a lawyer of their choice.[3] Those detained should also be produced in court as soon as possible, no later than 48 hours from the time of arrest.[4]

As a practising advocate of the High Court of Uganda, I have provided legal advice to over 100 suspects in different police stations. One thing stands out across the board: most suspects ( approximately 80%) are detained beyond the required 48 hours, despite the fact that the police have the mandate to release a suspect on police bond earlier than 48 hours, with or without a surety.[5] In one particular case I followed up, six male suspects from the refugee community, between the ages of 16 and 23 were arrested for assault and detained for a week. My efforts to apply for their release on police bond were futile. The police alleged that investigations were complete, and yet the police form for medical examination of the victim was still missing. Why do the police continue to violate a constitutional right by detaining suspects beyond 48 hours?

Justifications given by the police for the detention of suspects beyond 48 hours include; inadequate facilities to conduct investigations within 48 hours in particular capital offences like murder and defilement; understaffing of the police; language barriers with suspects, which delay the process of statement taking; and the absence of required officers from the Office of the Director of Public Prosecutions and Judiciary, respectively responsible for sanctioning charges and taking a plea. In 2018, the Police demanded that Parliament amend the Constitution and scrap the mandatory 48 hours.[6] They argued that 48 hours are insufficient to conclude a corresponding investigation, especially when it comes to severe crimes such as terrorism and murder.[7] The police further averred that terrorism suspects might need to be held for seven to fourteen days before being produced in court.[8]

In my opinion, the framers of the 1995 Constitution sought to protect suspects from unfair, unwarranted and unusually long periods of detention at the police. Detention beyond the 48 hours, the framers thought, comes with grave risks, including the possibility of suspects being tortured by police officers to confess to crimes they did not commit, as well as mental health issues such as depression and suicidal ideation. I once visited a police station with over 30 suspects in a tiny, dark cell, most of whom had been detained for almost a week. The suspects were angry and frustrated; whenever new suspects were brought into the cell, they would be asked to entertain the older suspects, and failure to do so would invite a beating from the other suspects.

The Ugandan courts have acknowledged abuse of the 48-hour rule. Justice Ralph Ochan stated, “…in the process of producing and presenting suspects in our Courts, the police and the prosecution do violate numerous constitutional rights of accused persons, yet even where such violations are brought to the notice of Courts, the prosecution goes ahead as if nothing has gone amiss.[9]” What then are the solutions to help reduce or end the abuse of the 48-hour rule?

As upholders of the 48-hour rule, the police should be brought up to speed with the operationalization of Article 23 (4b) of the 1995 Constitution of Uganda. This should go beyond police training school; the police should continuously be trained to uphold constitutional provisions and respect fundamental human rights. At all costs, action should be taken for those who violate the 48-hour rule.

Under the guidance of Resident State Attorneys (RSAs), proper and expeditious investigations by the police should be paramount even before an arrest is made. Investigations are crucial in prosecuting cases, and if appropriately conducted, support the conviction of offenders and could prevent errors such as the arrest of a wrong suspect. Substantial evidence makes it easier for the RSA to sanction police files, thus enabling the police to produce suspects to court within 48 hours. Completing investigations is neither an excuse for the detention of a suspect beyond 48 hours nor a prerequisite for arraignment in court. Investigations can still be carried out while a suspect is out on police bond or has been remanded to prison.

Additionally, proper investigations must be supplemented, in line with an agenda of decentralization, with the establishment of well-equipped government laboratories with appropriate staff in different regions and districts. These are critical for speedier conduct of investigations. At present, police from all districts do send investigative samples to the sole government analytical laboratory in Kampala, thereby overwhelming the staff there and inevitably slowing down investigations.

Where there is nothing compelling the police to continue detaining the suspect(s), the police should exercise their mandate to grant police bond with reasonable conditions before the 48-hour timeframe elapses. Equally, the grant of police bond should be exercised in the event of little or no possibility of the suspect(s) being brought before a court in 48 hours. Even in cases of preventive arrest, wherein it is pretty much impracticable to carry out investigations before the arrest has been effected, the same logic should apply. Most times, however, the police grant bond after the 48 hours have elapsed. This should not be the case!

Government should prioritize the increase in the number of police officers within various police posts and police stations. More often than not, police officers are stretched thin and have to handle multiple and divergent cases. Increment in the number and quality of police officers will undoubtedly speed up investigations, thus enabling them to produce suspects to court within 48 hours.

Police posts and stations, especially those in refugee-hosting districts, should have community interpreters stationed at the police stations to aid in communication with suspects who are refugees. This will enable police officers to quickly record their statements and proceed with their release on bond, or their arraignment in court.

In contradistinction to severe criminal cases, the police should embrace alternative dispute resolution (ADR) mechanisms such as mediation for minor cases. This would help a great deal in circumventing the detention of suspects involved in minor cases beyond the 48 hours. Not all cases, after all, need to end up in court; minor cases can be resolved through ADR. I once represented a client whose wife reported a case of domestic violence to the police, and this led to her husband being remanded to prison for over two months. Life became so difficult with the absence of the breadwinner that she requested the court to release her husband. Had the matter been resolved through ADR at the police level, perhaps the husband would not have ended up in prison.

Resident State Attorneys are vital players in observance (or the lack thereof) of the 48-hour rule. Therefore, they should be duly sensitized on the operationalization of the constitutional provision on the 48-hour rule. Having at least two RSAs on standby at their duty stations would go a long way in ensuring that the 48-hour detention rule observance is guaranteed. For, in the performance of their duty, RSAs can and indeed should direct police to release suspects where evidence is insufficient. They can do so by not sanctioning such police files.

Lastly, as an organ of the state, the judiciary occupies pride of place in ending abuse of the 48-hour detention rule. It needs to be duly sensitized about the optimal operationalization of Article 23 (4b) of the Constitution of Uganda. That judicial officers (magistrates and judges in particular) should regularly be at their duty stations cannot be overemphasized as an essential prerequisite for the rendering of justice. Having at least two such judicial officers at the district level would go another long way to guarantee enjoyment of the 48-hour detention rule. In a similar vein, the judiciary should also consider special arrangements where courts sit over weekends, public holidays, or during periods of a strike, given that for a great many suspects the 48 hours elapse in the course of such non-working days.

Furthermore, judicial officers should pronounce gallant orders like nullification of trials tainted with human rights violations, including abuse of the 48-hour rule and, subsequently, acquit the accused persons. Justice Ochan again had this to say: “…. we think it is high time the judiciary reclaimed its mantle and applied the law to protect our people's fundamental rights and freedoms as the Constitution requires. We cannot stand by and watch prosecutions mounted and conducted amid such flagrant, egregious and mala fide violations of the Constitution. We must act to protect the petitioners' constitutional rights in particular and the citizens of Uganda in general, and the rule of law in Uganda by ordering all the tainted proceedings against the petitioners to stop immediately and directing the respective Courts to discharge the petitioners.[10]”

To conclude, the production of a suspect in court within 48 hours of arrest is a constitutional right that should be observed at all times. For this to happen, the different stakeholders should play their roles. To begin with, the police should draft the minimal paperwork like the charge sheet, with a strict record of the date and hour when a suspect was arrested to promptly produce them in court within 48 hours or release the suspect on bond. The RSAs and judicial officers, in the second instance, should readily be available at their duty stations to sanction the charges and take pleas of suspects, respectively. Advocates representing suspects who have been detained beyond 48 hours should, in the final analysis, bring this fact to the court's attention, and the latter should accordingly interpret and apply the law to protect the constitutional right to freedom from arbitrary arrest. Only then will the 48-hour detention rule stand legal scrutiny.

The article was written by;

Ayaru Irene Priscilla

Legal Officer, Refugee Law Project

Twitter: @Ayaru_Irene

[1] Article 23 (1) of the 1995 Constitution of the Republic of Uganda.

[2] Section 23 of the Police Act Cap 303, as amended.

[3] Article 23(3) of the 1995 Constitution of the Republic of Uganda

[4] Article 23(4b) of the 1995 Constitution of the Republic of Uganda.

[5] Section 24(2b) and Section 25(1) of the Police Act, Cap 303, as amended.

[6] See https://www.parliament.go.ug/news/1450/police-want-48-hour-rule-scrapped (Viewed on 21^st May 2018)

[7] Paul Kiwuuwa, “Police demand the amendment of the 48-hour detention rule” Retrieved online at https://www.newvision.co.ug/new_vision/news/1477851/police-demand-amendment-48-hours-detention-rule (Viewed on 17^th May 2018)

[8] Halima Athumani “Police seek to end 48-hour detention rule” Retrieved online at https://www.voanews.com/africa/uganda-police-seek-end-48-hour-detention-rule (Viewed on May 24^th, 2018).

[9] Uganda v. Robert Sekabira & 10 others, High Court Criminal Session case no. 0085 of 2010

[10] Uganda v. Robert Sekabira & 10 others, High Court Criminal Session case no. 0085 of 2010

COVID-19 and the Courts of Law: Access to Justice in Pandemic Times can be a model for a post-pandemic world

Refugee Law Project Access to Justice for Forced Migrants 29 June 2021

First detected in the Chinese city of Wuhan in December 2019, the World Health Organisation (WHO) declared the coronavirus (SARS-CoV-2) disease 2019 (COVID-19) a "public health emergency of international concern" on 30 January 2020, and a global pandemic on 11 March 2020.[1] COVID-19 rapidly developed into a crisis affecting almost every country in the world. On 18 March 2020, the Government of Uganda (GoU), through the Office of the President, announced a series of public health measures to prevent the spread of COVID-19 across the country. These led to very restricted access to courts, despite such access being a fundamental human right provided for in Article 28(1) of the 1995 Constitution of the Republic of Uganda. In a bid to enable access to courts during the COVID-19 pandemic, the Judiciary took measures such as online hearings and electronic delivery of judgments. However, access to courts remained a challenge due to a host of factors.

Firstly, to prevent the spread of COVID-19 the Government of Uganda banned public and private movement of vehicles. Uganda's courts of law are exclusively located in urban areas — cities, municipalities, and towns. The prohibition of vehicle movement made it difficult for people living in peri-urban and rural areas to access the courts. The situation was - and in many regards still is - even worse for refugees living in refugee settlements, many of which are located far away from the courts. In Adjumani district, for example, refugees frequently walk 30 kilometres or more to access a court of law. For instance, Maaji II Refugee Settlement in Adjumani District is approximately 42 kilometres away from the Magistrates Court. Refugees are unable to afford the fare for public transport or, as is often the case, transport means are simply unavailable. With the ban on public and private vehicles and, stoppage of motorcycles from carrying any passengers, it was almost impossible for refugees and hosts alike in peri-urban and rural areas, especially asylum seekers and refugees in the far-off settlements, to access courts of law. Border districts, some of which host significant refugee populations, were disproportionately affected by the movement restriction borne of the COVID-19 lockdown, thus diminishing prospects to access courts.

Secondly, the Chief Justice (CJ) of Uganda issued directives to prisons not to present prisoners on remand to court,[2] thereby limiting prisoners’ access to courts. Even before the Covid-19 outbreak, many inmates had already been kept on remand long beyond the mandated time periods. I did establish this through prison visits I conducted in various prisons across the West Nile and Northern regions. The majority of the prison inmates on remand stated they had been on remand for between one and five years. Some had even spent a much longer time. The situation is exacerbated when accused persons are unaware of their rights, such as the right to mandatory bail. The directive of the Chief Justice worsened this so-called “overstay on remand”, thus increasing congestion in prisons. However, some judicial officers have been innovative in enabling accused persons' access to justice. For instance, on 14 May 2020, the Magistrate Grade I of Adjumani had a court session at the Uganda Prison Farm, commonly known as Openzizi prison, where 37 prisoners who had overstayed on remand were released. Other judicial officers have heard bail applications online. For instance, the bail application for Lt. Gen (Rtd) Henry Tumukunde was heard using video conferencing as he did not physically appear in court. The applicant followed the court proceedings from Luzira prison.[3] These initiatives are commendable as they address access to court and tackle overstay on remand; as well as reducing an egregious violation of detainees’ rights, this has the added advantage of decongesting Uganda’s overcrowded prisons.

However, the directives of the Chief Justice were silent on juvenile offenders, who are kept in remand homes. During a personal visit to Arua Remand Home, I discovered that it serves the entire West Nile region. Juvenile offenders from various districts across the West Nile, such as Adjumani, Moyo, Zombo, Yumbe and Nebbi, are all taken there, but then need to return to the courts in their respective districts to have their cases heard. Similarly, in the Northern region, juvenile offenders from as far away as Lira and Nwoya districts are all taken to Gulu Remand Home. Even before the Covid-19 pandemic the administrators of remand homes faced difficulties transporting these juveniles for their court hearings; one can only imagine how much more difficult it has become during the pandemic.

Furthermore, in his directives, the CJ suspended court hearings and appearances in court, although all judicial officers and staff were to continue being on duty. Court hearing precedes grant of remedies such as compensation, bail, imprisonment, et cetera. With the suspension of court hearings, parties lacked physical access and, consequently, were unable to obtain remedies. The Judiciary encouraged online delivery of judgments and rulings to counter this. His Lordship Musa Ssekaana delivered many judgements online.

Thirdly, although the Judiciary issued supplementary guidelines about online court hearings[4] to guide parties and Judiciary on how the hearings should be conducted,[5] and while the benefits of online hearings have indeed been experienced by some lawyers and accused persons in Kampala, many continue to struggle with the new virtual working arrangements. The situation was (and still is) starkly challenging in upcountry courts. The availability of necessary equipment like computers for the judicial officer and the prosecutor, the accused, and their advocate is never a given. Some have equipment but, due to their locations, lack access to the kind of internet connection that is essential for an online hearing. Many court users are impoverished and do not have computers and smartphones, let alone access to a reliable Internet connection. Most are still struggling to feed themselves during the pandemic. While for a long time the justice system of Uganda was structured so that the people had to go to justice actors, pandemic times have now necessitated that justice be taken to the people. However, only if the necessary investments in technology and communication equipment are actually made, will those in rural areas be enabled to access virtual courts.

Fourthly, the silence in the CJ directives about taking plea and bail applications for the suspects of minor offences is highly problematic. Since the presidential directives on the COVID-19 lockdown were issued, the police have arrested many people for disobeying the presidential directives, as well as for other crimes like theft. To deal with this, the Office of the Director of Public Prosecutions (ODPP) issued a circular to guide prosecutors on how to operate during the lockdown. The ODPP directed that all criminal cases arising from the enforcement of the government anti-COVID-19 measures are to be handled. But the related ban on public and private transport made it difficult for sureties of the accused even to make it to court. Judicial officers exploring the option of releasing an accused on their recognizance where sureties are physically unavailable remains a critical litmus test of access to justice in the current situation.

To conclude, these pandemic times have highlighted the need to get back to the drawing board and reassess what access to justice through the courts of law means under such circumstances. Access to courts was already a challenge before the COVID-19 outbreak; the latter has simply complicated further an already complex situation. New strategies should be developed to make the courts more accessible and to take justice to the people. More than ever before, the considerable potential of communication technologies to overcome barriers to court hearings and thereby to sustain and even enhance access to justice in the medium term should not be ignored. Hence, the Judiciary needs to heavily invest in equipping upcountry courts, in particular, with commensurate technological advancements to meet the challenges of the present virtuality. If the World Food Program can introduce biometric verification for humanitarian aid to refugees[6], why can’t the Judiciary, in the same vein, introduce online hearings in Uganda’s remote refugee settlements? While the use of mobile courts (where judicial officers conduct sessions in the communities) has been explored and successful in some refugee hosting districts such as Adjumani, Lamwo and Insigiro, COVID-19 times demand that we go a step further to make courts of law not just physically mobile but also virtual; only then can the right to access to court—which is a vital proponent of the non-derogable right to a fair hearing—be truly upheld in times such as these pandemic ones. Success in doing so will be of enduring benefit to those in hard-to-reach areas of the country long after the pandemic is over.

By Ayaru Irene Priscilla

Legal Officer, Refugee Law Project

Adjumani Field Office

Twitter @Ayaru_Irene

[1] Tedros Adhanom Ghebreyesus, “Opening remarks at the media briefing on COVID-19 (11 March 2020)”, https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19

[2] See http://www.judiciary.go.ug/data/news/821/2184/Administrative%20and%20Contingency%20Measures%20to%20Prevent%20and%20Mitigate%20the%20Spread%20of%20Corona%20Virus%20(Covid-19)%20by%20The%20Judiciary.html Guideline 2 Chief Justice Circular on Covid-19, issued on March 19, 2020.

[3] See https://www.monitor.co.ug/News/National/Gen-Tumukunde-released-bail-asked-deposit-passport-court/688334-5548888-pd67wl/index.html

[4] Guidelines for court online hearings, office instruction number 2 of 2020, issued on 29^th April 2020 by the Chief Justice of Uganda.

[5] These were to be applied alongside other laws such as the Computer Misuse Act of 2011, the Electronic Transactions Act of 2011, the Judicature (Visual-Audio Link) Rules of 2016, and The Constitution (Integration of ICT into Adjudication Processes for Courts of Judicature) (Practice) Directions 2019

[6] See https://insight.wfp.org/the-full-circuit-how-wfp-is-enabling-biometric-verification-in-uganda-823da0bf6ba7

COVID-19 Lockdown has frustrated Literacy Programmes in Uganda: Observation from the English for Adults Program of The Refugee Law Project

Refugee Law Project Access to Justice for Forced Migrants 06 October 2020

Every 8^th September, the world commemorates International Literacy day. This year’s commemorations will be amidst frustrations caused by the COVID-19 pandemic. In Uganda, the Government-instigated urgent total lockdown from late March onwards called off all activities that gather people - including closure of all educational institutions and centers across the country. In compliance with the directives from the Government and the Ministry of Health, the Refugee Law Project, School of Law, Makerere University immediately suspended all our thirteen English for Adults (EFA) Learning Centers in the rural and urban refugee communities.

A window of hope for survivors of conflict-related sexual violence living in Nakivale Refugee Settlement

Refugee Law Project Access to Justice for Forced Migrants 12 February 2021

English for Adults (EFA): A window of hope for survivors of conflict-related sexual violence living in Nakivale Refugee Settlement

Introduction

While many asylum seekers and refugees have experienced conflict-related sexual violence or torture, few disclose this and access the support they need. Lack of English language skills turns out to be one of the reasons for this, and English for Adults one of the solutions.

Uganda currently hosts the highest number of asylum seekers and refugees in Africa and the third in the world. This is attributed to her liberal refugee policies, security as well as the hospitality of Ugandans. June 2020 statistics from the Office of the Prime Minister indicate that Uganda has over 1,424,373 refugees and asylum seekers.

The majority of refugees are settled in various settlements in rural areas, including Nakivale, and a minority are recognised as urban refugees in the capital city. UNHCR data shows that in 2020 Nakivale, one of the country's oldest refugee settlements, hosted 132,811 refugees (9.3% of the national total).

The impact of gender roles on the enrolment in the English for Adult classes

Refugee Law Project Access to Justice for Forced Migrants 03 September 2020

Gender roles present a challenge for the English for Adult (EFA) class enrolment in Kyangwali Refugee Settlement, Kikuube district in Uganda. Women remain less involved in EFA classes because society continues to expect them to attend only to their homes and domestic chores whereas men are seen as the sole bread winners and the heads of families in Kyangwali. This results in a gap between men and women of certain tribes from the refugee community when it comes to accessing services, including English for Adult classes.

The 48-hour rule: A cornerstone of Justice!

COVID-19 and the Courts of Law: Access to Justice in Pandemic Times can be a model for a post-pandemic world

COVID-19 Lockdown has frustrated Literacy Programmes in Uganda: Observation from the English for Adults Program of The Refugee Law Project

A window of hope for survivors of conflict-related sexual violence living in Nakivale Refugee Settlement

The impact of gender roles on the enrolment in the English for Adult classes

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