Whatever happened to the right to a speedy and fair trial?

When I first started working at Refugee Law Project, an outreach project of the School of Law Makerere University, I perhaps naively assumed that these protections were not just present in law but also effective in practice. However, after more than a year as a legal assistant, working in support of RLP’s mission “to empower asylum seekers, refugees, deportees, IDPs and their host communities to enjoy their human rights and lead dignified lives”, I am no longer so sure. From what I have seen in the course of working with highly vulnerable and indigent refugees, these protections are not guaranteed, despite the best efforts of police, prisons and judiciary.

RLP routinely visits gazetted detention facilities in and around districts where we have presence, in order to identify both refugees and their hosts in need of legal aid/representation. What we find in many facilities is that more than half of the inmates are on remand. Refugees as well as their hosts are often detained beyond the 48-hour limit, their cases drag on for unduly long periods of time, and throughout the process the presumption of innocence seems to have fallen into abeyance.

The right to apply for bail under Article 23(6) (a) of the 1995 Constitution is premised on the presumption of innocence. The majority of detained persons, not least refugees, are vulnerable financially and psychologically, such that navigating through the legal system for most remains a daunting and confusing task. They often face particular challenges meeting bail requirements provided for under the Constitution, such as ready cash, a permanent place of abode, and substantial sureties. The lack of these requirements presents technical obstacles to possible enjoyment of the right to apply for bail. Furthermore, the actual grant of bail is dependent on the discretion of the judicial officer, some of whom show an inadequate appreciation of refugee dynamics, and this can easily be another factor that results in limited realization of a refugee’s right to apply for bail.

Under Article 23 (6) (b) suspects whose cases are triable by the lower court have an automatic right to mandatory bail when they clock 60 days of continuous remand without taking plea. On the other hand, for cases triable by the High Court, under Article 23 (6) (c) suspects qualify for mandatory bail upon continuous remand for 180 days without plea taking. In both case scenarios mandatory bail is unconditional; all conditions, including the requirement to present sureties, are waived. Unfortunately, in practice the grant of mandatory bail is nowhere near as widespread as the cases that require its application. A similar position is found in S.75 of the Magistrates Court Act and S.15 of the Trial of Indictments Act3. In principle these sections obligate a judicial officer to release a suspect on mandatory bail if he/she has continuously stayed on remand without trial for the aforementioned periods. The suspect does not need to be aware of this right; the judicial officer is obligated to inform the suspect of his/her rights to bail. Nevertheless, many suspects remain on remand despite qualifying for mandatory bail simply because they are unaware of this right or because they cannot afford or even access an advocate to represent them in court, common denominators among refugees and other types of forced migrants.

If bail were being applied as intended by the law, the issue of over-stayers on remand would not surface. I therefore argue that continuously remanding a suspect without taking plea after lapse of the 60th or 180th day for cases trial by the High Court without committal, amounts to illegal/unlawful detention for which a cause of action can be brought against the state. Unfortunately, I have also witnessed suspects being committed for trial on the 180th day itself. While in such a scenario the argument of unlawful detention cannot be sustained due to technical compliance with the letter of the law, it does make you wonder whether the spirit of the law is not being abused.

The fundamental question that has continued to perplex me and I imagine many others, is how long suspects - especially those on remand for capital offences - have to wait from the time of committal to commencement and conclusion of trial. In principle committal of a suspect for trial signals that investigations have been concluded, that the suspect has a prima facie case to answer, that the state is ready to prosecute the matter, and that adjudication/trial should commence. From my interaction with “over-stayers on remand”, committal is a technical myth that throws them into overly long and traumatizing periods of waiting for trial. These are characterized with anxiety, depression and uncertainty, with no possible legal recourse other than to pursue a plea bargain or, alternatively, to wait “for forever” for “the next convenient court date” - which never comes easily. No wonder some innocent suspects fall prey to plea bargain sessions and plead guilty to crimes they did not commit.

Both written and case law are worryingly silent about the maximum periods for which a suspect who has been committed for trial should be expected to wait before actual commencement of trial. Equally, they do not specify the time period within which a trial, once started, should be concluded. These gaps in the law enable judicial bureaucracy to keep suspects’ rights hanging: In practice, once a suspect is committed to High Court for trial, the process is subject to unnecessarily long delays. Many suspects remain in a state of limbo between committal and actual prosecution for a very long time, even 3 or 4 years or more before trial actually commences.

Prolonged detention pre- and during trial is a blatant violation of the right to the presumption of innocence, liberty, speedy and fair trial, rights which are internationally and nationally recognized as entrenched in the 1995 Constitution of Uganda. Such detention contributes significantly to overcrowding and congestion in detention places, and puts enormous pressure on inmates who are faced with loss of income for those who are employed, as well as breaking of family and community ties. In worst case scenarios, some face torturous conditions, including sexual abuse while in detention.

Whereas the 180 days currently stipulated in the law as the maximum period for pre-trial detention are the result of an amendment and reflect an improvement on the earlier 360 days, we are yet to see this limit operationalized. In the meantime, the violation of the accused’s right in pre-trial detention remains widespread.

In the absence of a definitive national or international law4 to provide guidance on what is meant by ‘speedy trial’ and ‘next convenient date’, case law may guide in the interpretation. When I went looking, this is what I found;

In Shabahuria Matia v Uganda5 the accused was remanded for a period of three years and nine months without committal, and delay of prosecution was regarded as an aspect of abuse of the process of court for which criminal prosecutions may be stayed. Justice Egonda-Ntende noted that:

“according to Article 28 it is incumbent on the state to proceed promptly with bringing the accused to trial, by committing his case to the High Court for trial. Notably that a period of three years without committal to the High Court for trial was exceptionally long so as to raise an inquiry as to whether the proceedings against the accused are not oppressive or otherwise in breach of his right to a fair and speedy trial”.

As a result, prosecution of the charge against the accused was dropped and the accused hence set free of the charges.

In Joseph Lusse vs Uganda6 the applicant had been remanded for treason for more than 360 days (this was before the law was amended and the period was reduced to 180 days). After committal to the High Court the applicant brought an application for release on bail. The State opposed the application arguing that since the applicant had been committed for trial, he could not be released on bail. Hon. Justice Tabaro held that under Article 23(6)(c) even where the accused has been on remand for more than 360 days (now 180 days) such person may be released on bail if he/she meets the bail terms.

Despite these two notable rulings, they do not address the questions of how long a remanded inmate who has been committed to High Court for trial has to wait for trial to start, nor of how long it should take the court to arrive at the final verdict. This puts the accused at risk of over staying on remand since no one is accountable for such delays, and thus abuse of suspects’ rights may continue unabated.

Recommendations

• Criminal cases must be concluded within a specified time-limit; Pre-trial detention, investigation and trial periods must be stipulated. Failure to conclude investigation, commencement and conclusion of a trial within a specified time should result in unconditional release of the accused.
• Legislative reform should result in widening the jurisdiction of the lower bench to preside over cases, and should make the High Court solely an Appellate Court. This would go a long way in reducing case backlog and therefore reduce long periods of pre-trial detention.
• The number of Judges of the High Court, the lower bench and State Attorneys should be increased. Pursuant to the above recommendations, more resources are needed to enhance the performance of both the lower and high courts.
• Disciplinary measures should be taken against judicial officers who habitually absent themselves from their duty stations.
• Continuous refresher and capacity building for judicial officers and state prosecutors should be promoted, together with encouraging judicial activism in the adjudication of matters.

1 Universal Declaration of Human Rights, International Convention on Civil and Political Rights, The African Charter on Human and Peoples Rights

2 Article 23 (4) of the Constitution and S.25 (1) of the Police Act

3 The Trial of Indictments Act Cap 23

4 International law also fails to provide specified durations of pre-trial detention. See the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 –September 7, 1990., The United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules), Rule 6, adopted by the General Assembly December 14, 1990. The African Commission on Human and Peoples’ Rights adopted the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, defining the right to a trial without undue delay as “a trial which produces a final judgement and, if appropriate a sentence without undue delay”.

5 Criminal Revision Cause No. MSK 00 CR 0005 OF 1999.

6 (1997) III KARL 58,