BY TURIGYE HAROLD
In light of the recent political events, it seemed that when the past was leaving this nation, it did so saying “let me leave you to your demons”. And now the demons have come back to haunt us. The past must be laughing at us.
The Law is like a prophet, a solution of hypothetical situations that lawmakers set in place for reference and direction. Circumstances come and we have to visit the law again for either their justification or criticism. The draftsman, like an iron smelter forges the law as a tool to fit its primary purpose which is to impute RIGHTS AND OBLIGATIONS.
The powers of the state and its apparatus to be soberly applied needs checks and balances. History has showed that the King will always use the law to consolidate his reign more than he will use it to uphold it and its primary role.
On or about the 14th of August, several arrests were made in Arua Electoral District on the Eve of the Arua Municipality Elections. The arrest saw more than 20 persons including Civilians, Members of Parliament, and the eventual winner Hon Kasiano Wadri spend several nights in detention in unknown locations, and later produced to different courts to answer charges. What made news however was the state some of the victims were in.
The stories of how the said persons were arrested, and treated during detention has echoed pain, anguish, and illegality. The pictures that made round on both local and international news platforms carried one main theme-TORTURE. From Pictures of Honourable Zake the Member of Parliament for Mityana Central with bruised body parts to a one Ms. Night who told her story on how she had been abused and tortured during arrest and detention, and all that is left of her are broken limbs and bleeding private parts, the evidence of torture was loud and ugly
On Friday the 17th, the wife of the pop star turned politician Hon Robert Ssentamu Kyagulanyi was given access to see her husband who was being held at Makindye Military Barracks. She thereafter issued a statement about the condition as given by the Law maker stating that he was tortured, injected with unknown substance to the point that his ears were bleeding, chest hurting and he cannot even walk without support. The same information was confirmed by the Honourable Kyagulanyi’s lawyer Katana Benjamin Kagiremire of Pace Advocates.
All the above reminded me of one of the Court Sessions during the trial of the 2011 Bomb Suspects before Hon Justice Owiny Dolo (As he was then). One of the suspects while giving evidence stated on record how in a bid to get evidence from the suspects, the security operatives forced them to undress and then sit on empty Coca Cola Bottles.
The One Million Dollar Question is whether such acts are justified, and whether they are legally backed up. We shall however address this concept at the two stages of ARREST and DETENTION.
The law provides for both the mode of arrest, and the process of recording statements to get evidence form suspect by the Police which should be more involuntary than the word itself.
Section 2 of the Criminal Procedure Act (Cap 116) provides for the mode of arrest and is to the effect that in making an arrest, the Police officer or any other person making it should basically touch or confine the body of the person arrested unless the person submits to it. The section further provides that if the person forcibly resists the arrest, or attempts to evade the arrest, the police officer or any person making the arrest may use all means necessary to effect the Arrest. However in a bid to avoid misuse of this provision, the Act also provides that” Nothing in this Section shall be deemed to justify the use of greater force than is reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.” This is applicable for all arrests whether it is done with or without a warrant.
In explanation of the above, the law provides that a little force which must reasonable in the circumstances may be used to arrest a offender, only if the offender forcibly tries to evade the arrest. A typical lawyer will say that what is reasonable is a case by case basis or what a reasonable man/right thinking member of Society walking on the streets deems reasonable. As to whether what was caught on Cameras can be said to be reasonable, that is for you the reader to answer and for the culprits to ponder.
At the level of detention, no justification is given for torture especially for the purpose of getting evidence as such evidence can be easily challenged in court on the claim that the information was obtained under torture and so it was involuntary.
Our case study being the Arua arrests, the statements from the victims prove that most the pain and injury was inflicted during detention. Legally, evidence corrected through torture whether physical or psychological cannot be used as a basis of a conviction whether the same was incriminating or not. Therefore, the only conclusion drawn for such acts is the need to create fear or suffocate any Political noise that may jeopardize the Regime’s efforts to stay in power.
Whichever way you look at it, the standards the security forces have consistently applied these provisions, effected arrests and tortured suspects in detention to get information faults international guidelines against the subject.
The United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment (UNCAT) (which Uganda is a signatory to)in Article 10 and 11 specifically prohibits use of force and torture by Law enforcement personnel, civilian or military personnel and other persons involved in the custody interrogation. It calls upon parties to keep interrogation rules, instructions, methods and practices under systematic review regarding individuals who are under custody. This is amplified by the constitution that provides for freedom against Torture and degrading treatment, and the poorly implemented Prohibition and Prevention of Torture Act of 2012.
The law however provides remedies for torture victims. Prohibition and Prevention of Torture Act provides that a person who commits torture may be charged privately and the offence attracts punishment of imprisonment for 15 years or a fine of 7 Million, or both. Relatively The Human Rights commission is setup as a platform to give remedy in form of damages to the victims. Furthermore, the victims may sue the perpetrators for false imprisonments especially when the arrest and detention was not legally backed up.
In conclusion, the status quo is that this tall big torture statute defines Law enforcement in Uganda. There is therefore need to enact strict law and institutions to destroy this statute lest is shall grow and cover all the light.
THE WRITER IS AN ASSOCIATE AT PACE ADVOCATES