To the Ugandan Minister of Justice Kiddhu Makubuya
Human Rights Watch is pleased that 12 detainees convicted as juveniles and awaiting minister’s orders were released on January 3rd this year after a consent decree. While encouraged by the release of these detainees, we write again to reiterate our concern regarding the continued and protracted incarceration of an additional 11 persons with psychosocial disabilities found not guilty by reason of insanity. Like the juvenile detainees, they have been imprisoned for years awaiting Minister’s orders, as set out in the Trial on Indictments Act. We urge you to act on these cases by releasing these individuals, thereby upholding their rights guaranteed by international and regional human rights law as well as the Ugandan constitution.
Previously in June 2009, Human Rights Watch brought to your attention five individuals who were deemed by courts to be not guilty by reason of insanity and who are currently on remand in Luzira Prison. We write again to reiterate our concern about the continued inaction regarding these prisoners as well as an additional six individuals in Katojo Prison in Fort Portal, all found not guilty by reason of insanity and on prolonged remand, in one case over 16 years. It is unclear how many detainees with psychosocial disabilities remain awaiting minister’s orders in other rural prisons and therefore we wish to encourage you to collect full information about the number and condition of such other detainees. We have enclosed the details of each case known to Human Rights Watch below and we wish to encourage the Ministry to work with the Prisons Commission to identify similarly situated prisoners throughout the country and issue orders for release so cases can be resolved. Appropriate mental health services and community integration should be made available to them.
According to Section 48 of Uganda’s Trial on Indictments Act, a person found to be not guilty for reason of insanity would be remanded to a prison, mental hospital, or other suitable place of safe custody as per the Minister’s order until a determination is made on the case. The individual remains on remand until such a determination is made. Once the Minister of Justice has issued this order, the superintendent of the custodial facility where the individual is detained, is then required by law to issue regular reports to the minister regarding the individual’s condition, history, and circumstances. When considering the periodic reports, the Minister of Justice may order the prisoner to be discharged.
However, Superintendents of custodial facilities are unfortunately not submitting such reports without the Minister’s orders, which led to individuals being detained on remand indefinitely, a situation which constitutes arbitrary detention and a violation of human rights law. Moreover, whilst these individuals are on remand they have no effective opportunity to challenge the legitimacy of their detention as they do not in practice have access to lawyers. In practice, lawyers are only provided by the state at the trial stage. Given the particular psychosocial needs of these individuals, their cases should have been handled with the utmost speed and sensitivity. Those so detained are being held contrary to international, regional, and national principles on the rights of persons with disabilities.
The Ugandan constitution in Articles 32 and 35, as well as the Uganda Persons with Disabilities Act, guarantee persons with psychosocial disabilities the right to respect and human dignity. The African Charter on Human and Peoples’ Rights in Article 18(4) provides that persons with disabilities have the right to special measures of protection in keeping with their physical or moral needs. In the African Commission case Purohit and Moore v. The Gambia (Communication No. 241/2001), the commission declared that “mental health patients should be accorded special treatment which would enable them not only to attain but also sustain their optimum level of independence and performance in keeping with Article 18(4) of the African Charter.”
According to the International Convention on Economic, Social and Cultural Rights and the International Convention on the Rights of Persons with Disabilities, to which both Uganda is a party, everyone has the right to the highest standard of physical and mental health on the basis of free and informed consent. These individuals have been awaiting Minister’s orders for periods of time ranging from one to 16 years. SK of Katojo Prison was arrested in 1991 on a murder charge and has been awaiting Minister’s orders for over 16 years, since December 12, 1994. Others have been waiting for over five or ten years.
The prolonged delay in notifying these 11 individuals of their legal status is a serious violation of their rights under national, regional, and international law. Under the Ugandan constitution, article 28(1), all Ugandans have the right to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. The African Charter on Human and Peoples’ Rights sets out the rights of those accused of crimes before the law. Under article 7 of the charter, all defendants have the right to a conclusion of the proceedings against them within a reasonable time. Under articles 9(3) and 14(3)(c) of the International Covenant on Civil and Political Rights, which Uganda ratified in 1995, all defendants have the right to a conclusion of the proceedings against them without undue delay. Under article 9(4), everyone detained has a right to be able to challenge that detention, an option these individuals on remand can very rarely exercise in practice.
The fact that the detention of these individuals, and others who are being detained pursuant to section 48 of the Trial on Indictments Act, is dependent upon the decision of a member of the executive and not an independent tribunal also renders their detention arbitrary and unlawful under international human rights law. The law should therefore be amended to comply with Uganda’s international commitments.
Below are the relevant details of the 11 cases. We urge the Honorable Minister to consider and promptly issue the appropriate orders as required by law so that the defendants can be informed of their legal status, and released to seek out assistance and/or treatment as they wish as soon as possible. We re-emphasize the importance of these cases and ask that you ensure that they are handled as required by law. Doing so will be an important step in respecting the basic rights of the individuals concerned.
We look forward to your prompt action on this matter and if the Honorable Minister or your colleagues wish to further discuss our concerns, we will be obliged to meet you at your convenience and thank you for your attention on this important matter.
Human Rights Watch
Chief Justice Benjamin Odoki, Uganda Supreme Court
Hon. Medi Kaggwa, Chairman of the Uganda Human Rights Commission
Hon. Cyprien Musoke, Chairman of the Legal and Parliamentary Affairs Committee, Parliament of Uganda
Hon. Erias Lukwago, Shadow Minister of Justice, Suite 116 London Chambers, Plot 4 Johnstone Street, Kampala
Dr. Margaret Mungherera, President, Uganda Medical Association, Kampala
Cases on remand awaiting Minister’s orders involving persons with psychosocial disabilities in Luzira and Katojo Prisons, in order of length of time awaiting Minister’s orders:
1. SK – MFP 437/1991 – FR 642/91
SK was charged with murder, admitted to prison on December 12, 1991, and placed on Minister’s order on December 12, 1994. He is currently in Katojo Prison, Fort Portal
2. BA – UR 533/01 – CSC 42/98
BA was arrested for murder in 1997 and tried for murder by the Mbarara High Court. He was placed on Minister’s orders during the trial on November 15, 2000. He is currently in Luzira Prison.
3. MA – MFP 604/2001 – FR 907/01
MA was charged with defilement, admitted to prison on August 24, 2001, and placed on Minister’s orders on January 30, 2006. He is currently in Katojo prison, Fort Portal.
4. PBA – MFP 637/2001
PBA was charged with murder and attempted murder, admitted to prison on December 5, 2001, and placed on Minister’s Orders on February 21, 2006. He is currently in Katojo Prison, Fort Portal.
5. KR – MFP 485/2001 – FR 676/04
KR was charged with murder, admitted to prison on September 21, 2001, and placed on Minister’s orders on March 7, 2006. As of November 2010, he was transferred to Murchinson Bay, Luzira, for treatment.
6. BE – AA 129/2002 – FR 588/02
BE was charged with murder, admitted to prison on July 12, 2002, and placed on Minister’s orders December 1, 2006. He is currently in Katojo Prison, Fort Portal.
7. OJ – UR 149/07 – CSC 47/02
OJ was arrested and charged with defilement in 1999. He pled guilty in Gulu High Court. He was placed under Minister’s orders on March 19, 2007 due to insanity. He is currently in Luzira Prison.
8. OB – UR 320/07 – CSC 57/04
OB has been charged with two cases of defilement. For the first case, he pled guilty, was convicted, and sentenced to 18 years.
For the second case, he pled not guilty, and was placed under Minister’s orders on March 22, 2007 by the Gulu High Court due to insanity. He is currently in Luzira Prison.
9. BJY – US 854/2004 – CSC 66/06
BJY was arrested in 2005 on defilement charges, and placed on Minister’s orders on October 22, 2007 due to reasons of insanity. He is currently in Luzira Prison.
10. BJ – UR 566/08 – CSC 0184/02
BJ was charged with defilement and placed under Minister’s orders by the Mbale High Court on May 5, 2008 due to insanity. He is currently in Luzira Prison.
11. MB – AA 89/2003
MB was charged with defilement, admitted to prison on November 12, 2004, and placed on Minister’s Orders on September 29, 2009. As of November 2010, he was transferred to Murchinson Bay Hospital, Luzira Prison, for treatment.
 Names have been withheld from public version of this letter.