MAKERERE LAW JOURNAL
IMPUNITY IN THE FACE OF INJUSTICE: THE UNRESOLVED PROBLEM OF TORTURE IN UGANDA
The right to freedom from torture or cruel, inhuman or degrading treatment or punishment is guaranteed absolutely by the Constitution of Uganda and cemented within the Prevention and Prohibition of Torture Act (PPTA) of 2012. Despite this comprehensive legal framework, enjoyment of the right remains a myth and violations continue unabated for the most part. At the heart of the persistence of torture and the government’s indifference thereto lie the problems of proliferated security agencies, the creation of illegal detention facilities and a dangerously underfunded police investigations department.
On the 18th of October, 2018 a short video of a Uganda Young Democrats (UYD) member being battered and forcibly whisked away in a minivan bearing a fake licence plate by several armed men went viral, eliciting widespread condemnation. In the video, the events described astonishingly occur in the middle of a daylit street in the city centre. The perpetrators, now known to be soldiers within the army, have since been charged before a Unit Disciplinary Committee with the light offence of ‘conduct prejudicial to good order and discipline’ which carries a maximum punishment of dismissal from the army with disgrace.
In August, only two months earlier, several opposition Members of Parliament were tortured by the Special Forces Command—the Presidential Guard—following an incident in which the Presidential convoy had been stoned by crowds supporting an opposition candidate for the position of Member of Parliament. One of the victims, the Hon. Francis Zaake, was dumped at a local hospital where he was placed on life support and has only recently made a return to a state of non-life-threatening health. Instances of torture meted out against journalists in relation to the events surrounding the elections above abound as well.
About a year before all these events, the media was awash with gruelling images of tortured suspects in the investigation of a police chief’s assassination.
Clearly, Uganda’s known negative record of torture continues to grow with these and more harrowing incidents. But to what end? And why is the law seemingly inadequate to stem the violations?
The right to freedom from torture or inhuman cruel and degrading treatment in Uganda is guaranteed under Article 24 of the 1995 Constitution. It is also classified as a non- derogable right. Uganda has gone further to protect this right by enacting the Prevention and Prohibition of Torture Act (PPTA) 2012. Under international law, this right is provided for under various international human rights treaties which Uganda has acceded to. These include the Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) , the African Charter On Human And People’s Rights(ACHPR) and the Convention on the rights of the child (CRC) among others. All these covenants explicitly state that it is an absolute right from which no derogation is permitted or ever justifiable and is therefore recognised under international law as a peremptory norm. No war or national emergency however dire can ever justify torture.
According to the UNCAT, ‘torture’ is—
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” 
The PPTA on the other hand defines torture to mean:
“any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity...”
Therefore, the PPTA widens the definition of torture to include private individuals and non-state actors unlike the international law definition which requires a perpetrator to be a state official or its agents. It imposes individual responsibility for acts of torture and for supervisors to be held liable in cases where they either condoned or were aware of the on-going acts of torture.
However, despite this existing legal framework, the right to freedom from torture and inhuman or degrading treatment remains one of the most violated human rights. In fact, of all the awards for human rights violations awarded by the Uganda Human Rights Commission (UHCR), about 72% are awards related to torture. Uganda’s protection of the right to freedom from torture and inhuman cruel or degrading treatment has been minimal. Numerous reports by the UHRC and other global NGOs like Human Rights Watch have repeatedly decried the violations of this right but only minimal steps have been taken by the government or the identified organisations to remedy the problems and these have been at face value. UHRC has pointed out state security agencies especially the police and the army as the main perpetrators of torture.
A report published by the Commonwealth Human Rights Initiative had this to say about the Uganda police,
“Uganda does not have a democratic, accountable police service. Instead, it has a heavily militarised, colonial-style regime police force that is firmly under the control of the ruling government. The interests of the Government are placed far ahead of the protection of Uganda’s people. The police are responsible for widespread human rights violations, and they have not been held to account.”
WHY DOES TORTURE PERSIST?
Three years after the enactment of the PPTA, not a single perpetrator of torture had been convicted under this law and yet it is an undeniable fact that torture has remained prevalent during those three years.
Despite ratification of all the key international human rights instruments, the government has failed to protect human rights domestically, or to take significant steps to address the problem of systemic and pervasive torture and prolonged illegal detention. It has been recognised that Uganda’s legal framework on torture is more than adequate and only requires competent, professional, well trained technocrats with specialized skills to hold perpetrators accountable and accord justice to victims of torture. Presently, these skilled technocrats are absent. The question therefore is why has torture persisted in Uganda? Why is there a very big gap between commitment and compliance?
According to research carried out by the African Centre for Treatment and Rehabilitation of Torture and Violence Victims (ACTV) the reasons for the gap between the law and its enforcement are; the lack of awareness about human rights, abuse of authority, poverty, the lack of deterrent punishment for the offenders and weak legislation.
The threat of terrorism especially in the post 9/11 era has provided basis for many democracies to justify the use of torture or at least to turn a blind eye to its use. The general response after terrorism attacks has been to use extra legal means to counter the threat often at the expense of the respect and fulfilment of human rights. For instance, the United States of America used torture methods like sleep deprivation and prolonged hooding to extract information from detainees in its special detention facilities for terrorists like Guantanamo bay in Cuba and Bagram in Afghanistan. Uganda’s response to terrorism has not been any different if the Kyadondo bombings case of Uganda V Hussein Hassan Agade, Idris Magondu and 11 othersand the Muslim cleric case are anything to go by.
The Supreme Court of Israel provides probably the best guidance on how governments should handle terror threats while maintaining observance of human rights. It has held that “even in the face of the harsh reality of continual terror unleashed against Israeli citizens, interrogation methods such as cuffing, hooding, loud music, deprivation of sleep and positional abuse are absolutely forbidden under international and Israeli law particularly when used in combination.” The court also rejected the ticking time bomb argument holding that torture could never be justified, even in the case of a ticking bomb.
Courts world over have condemned stress and duress techniques similar to those reported in Uganda as torture or other cruel, inhuman or degrading treatment. The European Court Of Human Rights has prohibited a certain set of techniques that had been used in Northern Ireland, involving protracted standing on tip-toes, hooding, loud noise, and deprivation of sleep, food and drink.
Unlike some governments like that of China that have fallen for the temptation of justifying torture, the Ugandan government recognises the absolute prohibition of torture in all circumstances although it is undisputed that torture continues to thrive under its nose.
2.1 Illegal detention facilities and multiple paramilitary forces / security agencies
The existence of various paramilitary groups that carry out civilian policing has removed safeguards for the prevention of torture hence rendering the various legislations ineffective. These include the Police special investigations unit in Kireka, which has over the years changed names from Operation Wembley, Rapid Response Unit and more recently the Violent Crime Crack Unit (VCCU). There is also the Joint Anti- Terrorism Taskforce (JATT), the Internal Security Organisation (ISO), the Chieftaincy of Military Intelligence (CMI) and the External Security Organisation (ESO) and more recently crime preventers. The powers of these groups are undefined and are not established under any law. Suspects arrested by any of the above named groups are often kept in un-gazetted places like safe houses and without access to their families or lawyers.
At the turn of the century, cases of torture were most prevalent in what came to be known as safe houses, the most notorious being on Kololo hill. However, torture cases today even occur at gazetted detention facilities like the infamous Nalufenya police station. The most common torture methods in Uganda have been identified to include ‘kandoya’ (where suspects hands and feet are tied together at the back), water torture, sleep deprivation, tying weights onto the male genitalia, introduction of pepper in the eyes, pulling out finger nails, unsanitary detention conditions and psychological torture such as blindfolding and threats of infection with HIV among others.
The impunity of the state and its agents including but not limited to the security and law enforcement forces has contributed to the problem of torture. Reports detailing torture have repeatedly brought into question Uganda’s commitment to fulfilling its human rights obligations. In 2011, the Human Rights Committee (HRC) urged the Government of Uganda among others to
“take immediate measures to investigate the excessive use of force and incidents of torture by the security forces and to prosecute and punish its perpetrators; Eliminate detention facilities known as “safe houses”; Improve overall conditions of prisons and adopt relevant measures to tackle the problems such as overcrowding, unsatisfactory state of prisons and shortcomings in the supply of health care and …allow non-governmental organizations and the Human Rights Commission of Uganda to have access to detention centres.”
2.2 Chronic underfunding of the police’s Investigations Department
The Criminal Investigations Department (CID) of the police that is charged with the responsibility of investigating crimes is chronically underfunded, and this prevents it from adopting modern methods of investigations. According to the Uganda Police, the CID requires at least Shillings 2.1 million to investigate and conclude one capital offense case and it records an estimated 50,000 capital offenses annually. However, under the current police budgetary allocation CID can only resolve 3 Percent of capital offences. Complicated cases like the Kyadondo bombings case that involved cross border investigations witnesses and dozens of witnesses have even cost as much as 300 million shillings. As a result of failure to gather sufficient evidence, the police resort to use of illegal means like torture to obtain confessions from suspects and hence occasioning further injustice. In the Kyadondo bombings case for instance, the court established by means of a trial within a trial that some of the confessions had been obtained through torture and they were thus excluded from evidence.
Similarly, the trial of those accused of murdering the former police spokesperson AIGP Kaweesi has been plagued by torture accusations by the police and armed forces. For instance, the mayor of Kamwenge Town Council in South West Uganda Mr. Geoffrey Byamukama, was tortured while in detention to the point of having rotting legs. In addition, Mr. Abu Rashid Mbazira was arrested together with his 12 children a clear violation of the Convention on the Rights of the Child (CRC) which prohibits the arbitrary and unlawful deprivation of a child’s liberty.35 Both of these incidents shocked Ugandans and were strongly condemned by the Uganda Law society.
In October 2017, High Court Judge Oumo Oguli ordered the State to pay Ush80m (about $22,000) to each of the 22 people being tried on charges of murdering the former police spokesperson Andrew Felix Kaweesi after medical evidence showed that they had been tortured while in custody. The judge faulted the state for failing to account for the injuries the suspects’ sustained while in detention at the Nalufenya detention facility. These injuries were not only visible in court but were also further confirmed by medical examination done by the African Centre for Treatment and Rehabilitation of Torture Victims which also revealed mental torture inflicted on the suspects.
In many cases involving high media coverage and publicity like the murder of high profile people, or the Kyadondo bombings where the police are under great pressure from the public to provide answers, it has resorted to torture to extract information from suspects. Despite all these cases where security forces are implicated in torture, not a single officer was charged under the Prevention and Prohibition of Torture Act. Instead, the police have adopted the strategy of punishing its officers under the disciplinary rules. The punishments for breaching the police rules are light as compared to those prescribed under the PPTA as some of the accused walked away with negligible sanctions like demotion and severe reprimand.
BREAKING THE CYCLE; SUGGESTIONS FOR THE PREVENTION OF TORTURE
There is need to abandon the old methods of police investigations that sought to establish the guilt of a suspect through confessions and embrace the scientific methods that concentrate on fact/truth finding. In any case, expert consensus is that torture does not work. Military interrogators have concluded that torture is not an effective way to gather accurate and reliable information.
In this regard, police efforts to modernise their investigation methods are handicapped by the chronic underfunding to the criminal investigations department. Whereas President Yoweri Museveni has repeatedly mentioned the need for installation of CCTV cameras in major parts of the country, this has not been done and there was no allocation for their procurement in the national budget 2017/2018. In a letter to the heads of the security forces, the president observed that “even if the suspects do not admit their guilt, if the investigators do their work well through [finger-prints, photo-graphs, DNA tests, eye-witnesses, the use of other scientific methods, the use of dogs etc.], the criminals can get convicted.” The registration of telephone SIM cards as well as issuing of Identification cards to every Ugandan after capturing their biometric information are steps in the right direction.
Reforms to enforce the constitutional provision that directs the presentation of a person before court to be charged within 48 hours after arrest should be enacted. This is because torture in most cases happens within these first 48 hours. In addition, the suspect should be allowed access to a lawyer in the shortest time possible and more importantly should be given the opportunity to be accessed by members of his family. According to the Standard Minimum Rules for the Treatment of Prisoners, “an untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them,” subject to reasonable security restrictions.
Parliament should ratify the Optional Protocol on the Convention Against Torture (OPCAT) which requires states to establish National Preventive Mechanisms (NPMs) to conduct independent oversight of the treatment of those in prisons and other detention facilities as a safeguard to ensure adherence to treaties and national laws banning torture. Since most of the torture in Uganda happens in detention facilities, this would go a long way in preventing torture. The National Preventive Mechanisms would also be more effective than the one- off visits that have been carried out in the past by UHRC and Members of Parliament where they have even had to seek permission from the heads of the respective security agencies.
To guarantee non-repetition of torture or ill-treatment as well as combat impunity for violations of the right to freedom from torture, the government should establish effective clear instructions to public officials on the provisions of the PPTA and the UNCAT, especially the absolute prohibition of torture. The state must provide regular training to the police and other military and security forces on human rights law especially specific training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Protocol). In addition, all detention facilities should be gazetted and their legality clarified as required under international law. According to the Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island guidelines) all persons who are deprived of their liberty by public order or authorities should have that detention controlled by properly and legally constructed regulations.
In addition, pursuant to General Comment 2 of the Committee against Torture which directs states parties to make the offence of torture punishable as an offence under its criminal law, the perpetrators of torture among the security forces should not be shielded from criminal sanctions by administrative and disciplinary proceedings as has been the case in Uganda. The PPTA which establishes the offence of torture and prescribes a penalty should be enforced. In the past the police have preferred the lighter charge of assault instead of torture. For instance, the former Old Kampala Divisional Police Commander Joram Mwesigye was convicted in March 2017 of assaulting a WBS television Cameraman for actions which could have easily amounted to torture under the PPTA as the victim has since become paralysed.
Government should also honour its financial obligations resulting from compensation orders to victims of torture which it has either failed or deliberately refused to honour. The UHRC has noted that the delayed payment of the tribunal awards to victims of torture affects their specialised treatment and rehabilitation who in most cases have lost their livelihoods.Under Article 14 of the UNCAT, all states parties are required to “ensure in their legal systems that the victim of an act of torture obtains redress and has an enforceable right to fair, prompt and adequate compensation, including the means for as full rehabilitation as possible.” Redress includes the following five forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Restitution aims to restore the victim to his or her situation before the violation of his rights was committed. Rehabilitation refers to the restoration of function or the acquisition of new skills required by the changed circumstances of a victim in the aftermath of torture or ill-treatment and can include medical and psychological care as well as legal and social services.
A key element of the PPTA is the authority granted to private individuals to carry out private prosecution of perpetrators of torture. Under the PPTA criminal proceedings under the Act may be instituted by any person, other than a public prosecutor or a police officer who has reasonable and probable cause to believe that an offence has been committed by any person under the Act. This provision was tested by human rights lawyers under the Network for Public Interest Lawyers (NETPIL) in 2016 when they sued the then Inspector General of Police (IGP), Gen Kale Kayihura and 20 other police officers accusing them of torturing supporters of opposition leader Col. Dr. Kizza Besigye. However, the trial was sabotaged by Boda Boda 2010 a quasi militia loyal to the IGP as its members gathered around the court threatening to lynch the lawyers thus disrupting proceedings. The case collapsed after the Director of Public Prosecutions took over the file and lost interest in the matter. Although this avenue was unsuccessful at the time, there is hope that private prosecutions can offer suitable remedies in cases against other perpetrators of torture in less politically potent cases.
In conclusion, civil society organisations and human rights activists can only go so far in the fight against violation of the right to freedom from torture, inhuman, cruel and degrading treatment if political will is absent. However, even in the absence of political will, the unique mechanisms under the PPTA and international law should be embraced to stop state impunity and put an end to the injustice that has been occasioned as a result of this impunity.
* LL.B III (2017-18), Makerere University School of Law.
 The UYD is a youth wing of the Democratic Party in Uganda.
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 A Unit Disciplinary Committee is a military court established under Section 195 of the UPDF Act of 2005, with jurisdiction to try non-capital offences under the Act.
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