Category: Detention

ASF just published a report that explores the level of knowledge, the attitudes and practices of key stakeholders towards pre-trial detention under the criminal justice system in Uganda. The survey was undertaken in four locations of Gulu, Arua, Lamwo and Kampala. A total of 405 community members, 96 police detainees, 54 prisoners, and 47 officials from Justice Law and Order sector (JLOS) institutions and legal aid service providers were interviewed, using both qualitative and quantitative methods. The report sheds light on the root causes of violations of procedural and constitutional rights. With this evidence base, the report provides recommendations for action and positive reforms in the area of pre-trial detention.

Pre-trial detention in Uganda

Uganda has an elaborate legal framework regulating pre-trial detention, which includes detailed provisions regarding procedural and constitutional rights. Compliance with these provisions,however, continues to be a challenge. Many persons going through the criminal justice system suffer violations of their human rights. These include arbitrary or illegal arrests, overstaying inpolice custody, the lack of access to police bond, or violations of the right to mandatory bail. The most vulnerable and indigent are those who suffer most from the lack of compliance with procedural and constitutional rights.

Key challenges

The report findings show that a key challenge which exacerbates the continued violation of rights during detention is the lack of knowledge by the public with regard to their pre-trial constitutional and procedural rights. Only half (50%) of respondents in the community were able to mention some of the rights of people arrested by police. Such rights as (1) the right to be produced in court within 48 hours after arrest, (2) the right to be released on mandatory bail, (3) the right to access a lawyer and (4) the legal provisions related to police bond are not known by a majority of the population (less than 50% of respondents had knowledge of those rights).

The prison inmates interviewed during the survey had slightly better levels of knowledge of their rights, which could be attributed to sensitization meetings held by prison wardens and NGOs.

The lack of knowledge of key procedural and constitutional safeguards, both within the community and in places of detention, is not a surprising finding. However, it re-confirms the importance of dissemination of these technical provisions in order for rights-holders to be empowered to demand respect for their rights.

Attitudes and perceptions

Regarding attitudes and perceptions, findings show a lack of trust in some criminal justice institutions, in particular in the Uganda Police Force (UPF). Community respondents noted issues such as delays and inefficiency in the treatment of cases, as well as corruption.

Both police detainees and prison inmates reported low levels of trust in the police to handle cases, and mentioned experiences of being asked for bribes.

Such a high level of distrust in the police may impede access to justice and human rights, as communities who do not trust the police will be less likely to report cases or collaborate with the police, and detainees may feel less confident in advocating for the respect of their rights in their interaction with the police.

A consequence of the distrust of the police was also the finding that the majority (57%) of community members trusted local or cultural courts rather than the police to handle their cases, especially in rural areas such as Lamwo and Arua.

Practices

Finally, the study also sought to identify prevalent practices with regard to pre-trial detention and the administration of justice, in order to understand how realities may differ from the provisions of the law. Among community respondents, a particularly outstanding finding concerned the prevalence of mob justice, with about 89% of respondents acknowledging its existence in their community. At the level of police detention, a key finding identified from detainee surveys concerned the duration of detention, which averaged 5.3 days, far beyond the legal limit of 48 hours. Finally, an important issue was also raised with regard to legal aid: only 16% of police detainees and 30% of prison inmates had access to a lawyer.

Perspectives and challenges faced by duty bearers

In order to fully contextualize the above findings, the study also sought to gather the opinions of duty bearers on their role in protecting procedural and constitutional rights, and their attitudes and practices within the criminal justice system. Stakeholders from various institutions were interviewed, including the Uganda Police Force (UPF), the Judiciary, the Office of the Directorate of Public Prosecutions (ODPP), the Uganda Prisons Service (UPS), cultural and Local Council leaders, probation officers and the in-charge of a remand home.

Overall, the stakeholders interviewed demonstrated solid knowledge of their role in upholding constitutional and procedural rights and stressed the fact that the execution of their roles is interdependent within the criminal justice chain link (police, prison, judiciary, ODPP). Yet, they identified several systemic challenges which greatly impeded their ability to fulfil their duties. Beyond the expected human resource challenges and inadequate funding issues, stakeholders also discussed coordination gaps amongst JLOS institutions, or dysfunctional checks and balances within the criminal justice system.

Finally, interviews with advocates and paralegals highlighted key issues in legal aid service provision, including the lack of services in rural areas such as Lamwo, and funding gaps. Such findings highlight the pressing need for government to address access to legal aid as a matter of national policy.

Protecting procedural and constitutional rights through access to justice (2020-2023)

Avocats Sans Frontières (ASF), in partnership with the Legal Aid Service Providers Network (LASPNET), implemented a three-year project (2020-2023) entitled “Protecting procedural and constitutional rights through access to justice” in the districts of Kampala, Arua, Gulu, Hoima, Lamwo, Kitgum, Wakiso and Masindi.

• When? Thursday February, 15 2024 – 12pm (Bangui, Brussels, Kinshasa, Niamey, Rabat, Tunis) / 2pm (Dodoma, Nairobi, Kampala)
• Langage: English
• Free online event – Registration required

During this ExPEERience Talk #12, ASF’s team in Uganda will present the resutlts of a soon-to-be-published report on knowledge, attitudes and practices about pre-trial detention in Uganda.

Uganda has an elaborate legal framework regulating pre-trial detention, which includes detailed provisions regarding procedural and constitutional rights. Compliance with these provisions, however, continues to be a challenge: many persons going through the criminal justice system suffer violations of their human rights. These include arbitrary or illegal arrests, overstaying in police custody, the lack of access to police bond, or violations of the right to mandatory bail. The most vulnerable and indigent are those who suffer most from the lack of compliance with procedural and constitutional rights.

The report explores the knowledge, attitudes and practices of users of the criminal justice system, namely communities and pre-trial detainees, along with the perspectives of duty bearers, thereby shedding light on the root causes of violations of procedural and constitutional rights. With this evidence base, the report provides recommendations for action and positive reforms in the area of pre-trial detention.

Join us on February 15 to discuss how we can work together to improve the respect of fundamental rights in detention.

Related publications

• When? Thursday 26th of October 2023
• Where? Kampala (Venue to be determined)
• The event is organised in collaboration with the Uganda Human Righs Commission
• By invitation only
• Online broadcast of the event

This dialogue will bring together actors from Uganda police force, Uganda prison service, Judiciary, Office of the director of public prosecutions, parliament, members of civil society, academia, development partners, project advocates and paralegals.

It will be an opportunity to address the challenges affecting the enforcement of procedural rights in the administration of criminal justice in Uganda and propose reforms to address the gaps.

The event is part of the project “Protecting procedural and constitutional rights through access to justice”, which was implemented from 2020 to 2023 by ASF and its partner LASPNET (Legal Aid Service Provider Network) in the districts of Gulu, Masindi, Hoima, Lamwo, Kampala and Wakiso.

In Uganda, as in many countries, rights of pre-trial detainees continue to be violated. Since the start of the project, advocates and paralegals reached over 10,000 detainees whose procedural rights were violated in the project districts, and provided procedural remedies to over 2,000 detainees. Notable among these violations is the detention of suspects beyond 48 hours, and the overstay on remand for both capital and petty offenders, which results into violations of their constitutional right to be released on mandatory bail and to a fair and speedy trial. Two studies conducted by ASF, the baseline report on the social economic profile of detainees and the Knowledge, Attitude and Practices report, noted that the overstay on remand by both the petty and the capital offenders is as a result of poor attitude towards pre-trail detention by state actors. 

The aim of the project is to contribute to a better application of procedural and constitutional rights in the administration of criminal justice in order to reinforce adherence to human rights and the rule of law in Uganda. It adopted a holistic approach, going beyond addressing detention issues in the administration of justice in Uganda and working towards a greater engagement from central institutions for policy reform in Uganda.

Register to follow the event online

Bail[1] has increasingly become a contentious issue not only in Uganda but globally. Legal and social debates on the balance between public safety and the right to personal liberty rage on in public and political spaces. Those debates have been at the center of attention in Uganda as many have called for reform of the legislative framework regulating the access to bail and as efforts are made in that sense.

Lawmakers, civil society members, judiciary members and other actors have expressed many different and sometimes contradictory concerns about the current state of applications for bail and its grant in Uganda.

The president has openly protested some court decisions granting bail to murder suspects, arguing that this amounts to provocation of the public[2], and the increase in capital crimes has led some to advocate for more stringent conditions for the grant of bail. Cases of exorbitant fines and unaffordable cash bails imposed on applicants for bail by courts are argued to be discriminatory because only the rich can afford to pay them. Overall concerns have been raised on the inconsistencies in the exercise of court discretions while considering conditions for bail.

Another dimension of the argument regards the cost of bail for the community. Maintaining people in detention has a price and people detained cannot support their family and contribute to the economy.[3] The overall cost of maintaining a detainee in Uganda to the treasury is 22,966 UGX per prisoner per day[4]. As of December 2022, the Ugandan prisons counted 74,414 prisoners of whom 35743 were remand Prisoners.[5] This brings the yearly cost of prisoners’ maintenance to 1,708,991,924 UGX[6], of which 820,873,738, more than half goes to pre-trial detainees daily.

In December 2021, the Chief Justice issued proposed bail guidelines[7]. These were intended to complement the existing legal provisions on bail and promote uniformity and consistency by courts when considering bail applications. One of the goals of the proposed guidelines was to address the abuses in the use of pre-trial detention and the resulting prison overcrowding.

In February 2022, ASF and its partners submitted a memorandum to the Judiciary rules committee highlighting some of the key issues that hinder and impact negatively the treatment of pre-trial detainees. Some key recommendations were not considered. For example, the recommendation on Mandatory release of offenders on bail who have been in detention for 60 or 180 days for petty and capital offenders respectively without trial.

The Constitutional (Bail Guidelines for Courts of judicature) (Practice) Directions, 2022 were however passed and launched by the Chief justice on 27^th July 2022. Some clauses of the guidelines have since consequentially amended the Constitutional provision on bail especially clauses providing for mandatory bail for capital offences. Previously, the Chief Magistrates had jurisdiction to grant mandatory bail to capital offenders before their cases were committed to the High Court. With the coming into force of the bail guidelines, jurisdiction to grant mandatory bail to capital offenders is now limited to only the High Court[8].  This has further hindered access to justice for pre-trial detainees especially those charged with capital cases. Lately, release of capital offenders on mandatory bail has become challenging because those who manage to apply to the High court for release on mandatory bail get committed for trial before their files are called by the High Court. In areas where there is no High Court, prisoners have lost hope and have resorted to plead guilty under plea bargain as an alternative. The congestion levels have worsened in some prisons due to an increased number of remand prisoners.

In Uganda, ASF in partnership with the Legal Aid Service Providers Network (LASPNET) is implementing a three-year project titled ‘Protecting procedural and constitutional rights through access to justice’, funded by the Austrian Development Cooperation (ADC).

Under the project, ASF has enlisted paralegals and advocates to monitor violations of procedural and constitutional rights and provide legal assistance in eight districts in Uganda. Since the start of the project, more than 4,000 cases of violation of pre-trial detention rights were registered; of these 2,047 were found in prisons. Over two thirds of detainees reached in prisons were reported to have exceeded the mandatory bail period which is a violation of their right to bail and a continued violation of procedural rights. Also, ASF undertook a baseline study on the socio-economic profile of detainees and the grounds for their incarceration. One of the key findings from the study was that 30% of the detainees did not know of the right to apply for bail and thus had overstayed on remand.

In an effort to pursue its advocacy efforts in favor of pre-trial detainees’ rights, ASF in partnership with Ssekaana Associated Advocates and Consultants and an individual petitioner, Stephen Kalali, have petitioned the Constitutional Court to challenge some provisions of the Bail Guidelines[9]. It is hoped that this will shade more light on the anomalies in the law and practice on bail.

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[1] Bail is the temporary release from custody by a court of law of an accused after providing security for future appearance in court on such conditions as the court considers reasonable.

[2] Katusiime Ian. “Museveni’s Stand on Bail.” The Independent 4^th October 2021.

[3] Open Society Foundations, The Socioeconomic Impact of Pretrial Detention (2011) https://www.justiceinitiative.org/uploads/84baf76d-0764-42db-9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf 11ff.

[4] Around 6$

[5] Uganda Prisons Service, Monthly Newsletter, (Deceember 2022) https://www.prisons.go.ug/sites/default/files/UGANDA%20PRISONS%20SERVICE%20Monthly%20Newsletter%20September%202021%20Edition.pdf.

[6] Around 450.000$

[7] “The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2021”

[8] (Para 10(3) and 11(3) of the constitution (bail guidelines for courts of judicature) (practice) directions, 2022

[9] in the case of Kalali Stephen Vs Attorney General Constitutional Petition No 32of 2022

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