The Observer (Kampala)

27 February 2013

Uganda: Guilty Until Proven Innocent

opinion

In Luzira Maximum Security prison, a prisoner reportedly sliced off his penis, protesting his prolonged detention.

In another incident last week, Lira prison was shut down with the help of police officers and soldiers after detainees, outraged that they were not getting their day in court, went on rampage. Prolonged imprisonment, mostly for suspects on remand, is an obscene hallmark of Uganda's criminal justice system. However, thought about in its entirety, it raises serious questions about the delivery of justice and fairness in the society.

Indeed, a look at prisons and prisoners speaks volumes about the society outside. So does the instinct of politicians to create new laws purely as punishment, like the new 'Public Order Management Bill', a majority of whose victims will be individuals protesting the management of public affairs. When seen purely as "case backlog", the long stays on remand are merely an administrative cog up. What they amount to, however, is mass detention without trial.

This practice attacks the presumption of innocence, a cornerstone of our justice system that considers one innocent until proven guilty. This system is not simply a matter of law. It speaks to society's indifference, its inability to embrace higher values, intolerance and its lack of commitment to the neighbour next door.

The flaccid response by the legal community, including the judiciary, as well as institutions that uphold morality, like the church, to this most obvious of transgressions, is outrageous. The presumption of innocence holds that punishment is a result of due process of the law; never arbitrary.

Accused persons are protected under the constitution by the right to representation, the option of a plea to ensure the court proceeds with determining their culpability, and the right to a speedy trial to spare them undue discomfort should they claim innocence before the law. Punishment that arises out of this process may be seen as just and fair. However, for the majority of inmates in Uganda's poorly-funded prisons, this is not the case.

Fifty-four per cent of all inmates are on remand, lengthy imprisonment that amounts to nothing short of extra-judicial punishment meted out prior to the guilt or innocence of suspects being determined by a competent court. This sort of "detention without trial" is part of a constitutional petition, which remains unheard today because there are no judges to hear it.

According to the head of the Judicial Service Commission, Justice James Ogoola , five judges are immediately required at the Supreme Court, eight at the Court of Appeal, seven at the High court and no less than 43 magistrates in the lower courts. The lack of judges is a huge contributor to inability to dispose of cases expeditiously, just as much as the role of the police service to expeditiously close case files ready for prosecution.

However, even this number of judges recommended by the Judicial Service Commission is conservative fire-fighting. One attorney says no less than 50 judges at the High court will be needed to reverse the backlog. Most replacements at the High court are for overworked judges, two or three who retire every couple of years.

Besides their pay issues, burnout ensures that judges struggle to give every case attention, imperiling the very presumption of innocence - a burden that involves both the judge and the prosecutor. The principle requires that it is the accuser (the state represented by the prosecutor) that bears the burden of proof, a high standard to erase any doubts about guilt or innocence.

As such, enabling the burden to be discharged requires commitment in the capacity of the courts and the prosecution to deliver. The petitioners in petition No 23 of 2011 are representative of many suspects accused of capital offences - the more serious cases against ordinary people.

Barihi Grace Peter and Fred Biryomumaiso are both accused of treason and were arrested in 2002. Both claim to have been detained and tortured in safe houses before being charged. After a year in detention, they were granted bail. Since then, almost a decade later, they have been on bail unable to find work, leave the country or live meaningfully as a result of lingering serious but unproven charges against them.

They are required to periodically report to have their bail conditions extended, never knowing if or when the Director of Public Prosecutions (DPP) will commence their trial or even drop the charges altogether. And they are the lucky ones because with legal representation, they have taken advantage of their right to bail, a privilege that politicians want to remove as well, with a new law seeking to limit bail - again largely to front load punishment ahead of due process.

Not only is their innocence or guilt unproven but being in legal purgatory, their right to a speedy trial has been repeatedly violated. Their petition filed by human rights lawyer Ladislas Rwakafuzi states that requiring accused suspects to appear before the High court only after committal [which involves the approval or refusal of the DPP] is wrong.

They also reject the current state of the law in which committal proceedings are mandatory in order to simply initiate a process of trial after accused persons have been on remand for at least a year. During that year [which can extend to several for individual prisoners after committal] one is in limbo, neither guilty nor innocent - simply accused, which is tantamount to being jailed purely on the basis of an allegation.

The petition also challenges the notion that a trial of an accused person can only be done at the convenience of the court. This means after committal to the High court one can be tried in an indefinite period at the pleasure of the court. It may make sense considering the workload, but it's a terrible miscarriage of justice. Committal proceedings, the petition points out, mean the accused often does not know the charge preferred against him or her (the law requires that they know), can't prepare for their defence, are unable to plea bargain and are not afforded an attorney at the expense of the state, and so forth.

Rwakafuzi also makes a case against the involvement of the DPP, a member of the Executive arm of government. If the DPP determines who can or can't be brought before a High court judge, he exercises a judicial function, a preserve of the courts, he argues, whereas the High court has what the law says is "original and unlimited" jurisdiction. This is a veiled reference to the ability of politics and influence peddling to bear on the DPP and members of his staff (also understaffed).

The petition also points out that it does not make sense to take someone to a Magistrate's court for offences already known to be triable only by a higher court. In Lira, the prison riot was because inmates who had been on remand longer found their names missing on the cause list - the official roster for court appearances. Besides, the cause list brought was for people who had indicated they would plead guilty in anticipation that this is less bearable than their endless stay in prison.

Plea-bargaining is not official practice but both prison officials and lawyers say guilty pleas have little to do with one's guilt but sometimes come out of desperation. Prison conditions are worsening with the growth of inmates - some say buoyed by increased resources provided to the Uganda Police Force - and new laws that make it easier for one to land in prison.

Since 2009/10, the prison population has almost doubled from 0.38% of Uganda's population to almost 0.75% projected for 2012/13. This translates into a prison population of 36,832 projected for this year, up from 31,230 at the end of June 2010. Holding capacity, however, has not changed much but is rather oversubscribed by 20,413 inmates, a congestion rate of 238%!

Thus for a space planned for a single inmate - three share. It may be shocking to many that the budget for prison maintenance is just about $100,000 or Shs 200m annually. The shortfall is met by the selling of prison labour which unofficial sources say earns the service Shs 3.5bn or $2m annually.

The crowded unhygienic conditions mean that aside from being punished without due process, the punishment is harsh and often results in the death of prisoners from curable disease (mortality rates from illness tend to be higher in prisons than outside).

Citizens of conscience must reflect seriously on this broken system and find ways to cure it.

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