April 8, 2009

XI. Uganda's Anti-Terrorism Act

The criminal offense of terrorism is set out in both the Ugandan Penal Code and the 2002 Anti-Terrorism Act (ATA), which was passed in the wake of the 2001 attacks on the World Trade Center in New York. The ATA lays out legal procedures required when state authorities are conducting counterterrorism investigations, defines the crime of "terrorism" in much greater detail than the Penal Code and gives specific regulations for surveillance and interception of communications by terrorism suspects. There is no specific mention of JATT and its role to combat terror in the ATA.

Under the ATA, four groups are labeled as terrorist organizations. The Lord's Resistance Army (LRA), the Lord's Resistance Movement (LRM), the Allied Democratic Forces (ADF) and Al-Qaeda. [271] Human Rights Watch is not aware of detentions in Kololo of LRA or LRM suspects, though there have been several instances in which LRA combatants have been held in CMI custody in ungazetted locations. [272]

The crime of terrorism, as defined in the ATA, is overly broad, consisting of any act that involves serious violence against a person or serious damage to property, endangers a person's life (but not just the life of the person committing the act), or creates a serious risk to the health or safety of the public. Any such act must be "designed to influence the Government or to intimidate the public or a section of the public," and to advance a "political, religious, social or economic aim" indiscriminately. [273] The minister of internal affairs has the sole power to declare an organization "terrorist" without challenge in court and without any substantive requirements. [274]

                                                                                                               

Critics have pointed out other problematic aspects of the ATA.[275] For example, it does not precisely define "influencing the Government" and "intimidating the public or a section of the public," potentially implicating those who hold opposing views from the government. Journalists in particular could be prosecuted for reporting on the activities of rebels during a war. The ATA "subjects political activities to criminal sanctions, even when there has been no criminal activity."[276]There is also no indication of the level of damage that would render an act a crime of terrorism. According to two critics "without clear definition of terms used, acts that should be punishable under regular criminal law would under this law be punishable as acts of 'terrorism', therefore attracting much higher sentences that are grossly unfair."[277]

Critics have also noted that the ATA for certain offenses violates the right to be presumed innocent, which is explicitly guaranteed under international human rights law.[278] The ATA imposes up to five years of imprisonment for destroying  material likely to be relevant to an investigation, "unless the accused persons can prove that they had no intention of concealing any information contained in the material in question from the person carrying out the investigation" (emphasis added).[279] According to the International Commission of Jurists, "If a disproportionate burden is placed on the accused to prove facts, or to prove a lack of criminal intention, the [right to be presumed innocent] is effectively set aside.[280]

According to court records, in 2008, there were ten individuals charged with "terrorism" in three different cases, all related to ADF activity. [281] Of those cases, five of the individuals received amnesty, one died after arriving at Luzira prison, [282] and four have cases still pending before the high court. None have gone to trial. All of these individuals were initially arrested by JATT and spent long periods of time in detention in Kololo and other safehouses. It is unclear if these individuals were charged under the Penal Code or the ATA. Prison and court records seen by Human Rights Watch both indicate that all of the individuals were charged under the Penal Code, but according to Director of Public Prosecutions Buteera, this is an error and all are charged under the ATA. [283]

[271]2002 Anti-Terrorism Act, Second Schedule. Section 10 (5) of the Act gives the Minister power to make a statutory instrument declaring any terrorist organization dissolved or providing for the sending up of the terrorist organization and providing for the forfeiture to the state of the property and assets of the terrorist organization.

[272]Human Rights Watch interview with member of Ugandan military, January 28, 2009.

[273]2002 Anti-Terrorism Act, 7.

[274]Ibid., 10.

[275] See Judge S. B. Bossa and Titus Mulindwa, The Anti-Terrorism Act, 2002 (Uganda): Human Rights Concerns and Implications, a paper presented on September 15, 2004 to the International Commission of Jurists, p. 8, http://www.icj.org/IMG/pdf/Paper_Bossa.pdf; Amnesty International, Uganda: Amnesty International Concerns on the Regulation of Interception of Communications Bill, 2007, AFR 59/005/2008, 2008. Amnesty argues that since neither the Regulation of Interception of Communications (RIC) Bill nor the Anti-Terrorism Act "provide more precise formulations of the specific circumstances and purposes for which interception of communication is permitted," there is the possibility of broad interpretation and abuse "in relation to authorizing interception of communications and conduct of surveillance which may lead to significant human rights violations." The RIC Bill seeks to expand the purpose of interception and surveillance beyond those stated in the Anti-Terrorism Act to include "the prevention of crime and protection of public safety, national security or national economic interest."

[276]Ibid.

[277] Ibid.

[278] See ICCPR, art. 14(2); African Charter on Human Rights, art. 7 (1); see also UN Human Rights Committee, General Comment No. 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003)' paras. 11 and 16 (even during states of emergency, the presumption of innocence must always be respected).

[279] 2002 Anti-Terrorism Act, art. 17. See ICJ, Report of the Eminent Jurists Panel on Terrorism, Counterterrorism and Human Rights, "Assessing damage, Urging Action", 2009, p. 154. http://ejp.icj.org/IMG/EJP-Report.pdf.

[280] Ibid, p. 155.

[281]Court computer records are not necessarily accurate repositories of information. Human Rights Watch found at least one instance in which someone charged with treason was not in the computer system. Paper files are available though aggregating data from the paper sources is very challenging. The magistrate courts report to the Director of Public Prosecutions at the end of each month, stating how many cases of various offenses are at various stages in the legal process. Because of changes in way in which this information was reported in 2008, total numbers of specific cases have been very difficult to ascertain. A computer search indicated that between 1999 and 2009 there have been 21 cases of treason in Kampala, though the true number is likely higher.

[282]See above, the case of Tayebwa Yasin, alias Hamza Kaifa

[283]Human Rights Watch interview with Director of Public Prosecutions, Richard Buteera, January 20, 2009.