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V. The Conditions for Torture: Safe Houses and Arbitrary Detention

Unacknowledged And Unauthorized Places Of Detention: Safe Houses

Weakened protections and guarantees facilitate the commission of torture. These unacknowledged places of detention are not visited by outsiders nor by government officials charged with inspecting conditions inside detention cells. The government is provided “deniability” by holding the detainees in secret, and this creates a feeling of impunity among security and intelligence officers.

The 1995 Ugandan constitution explicitly outlaws the holding of detainees in unacknowledged or “ungazetted” places of detention, that is, those not published in the official gazette.155 Police stations are gazetted facilities. UPDF barracks and CMI offices are not gazetted facilities. The other “safe houses” where the non-police agencies hold, interrogate, and torture suspects are not gazetted and are illegal also.

Before 1995, safe houses had been commonly used for detention; some were then closed, but they are now being used again. The UHRC dates the reemergence of safe houses to 1998, during the 1997-99 wave of terrorist bomb attacks in Kampala believed by the security forces to be associated with the western-based rebel group ADF.156

The constitutional provision requiring gazetting of all places of detention is now not enforced at all. Suspects are routinely taken to ungazetted places of detention, many of them in the capital, Kampala, for prolonged periods, without any official condemnation or effort to close them down. The two most commonly-cited safe houses are the headquarters of the Chieftaincy of Military Intelligence (CMI) on Kitante Road in Kampala, and a house on Clement Hill Road in Kampala, formerly used as the headquarters for Operation Wembley.157 Rooms, cells, and offices in military barracks are also frequently used as safe houses as well.

At both the Central Police Station (CPS) and Kiira Road police station in Kampala, the UHRC found, the CMI military personnel guarded “its” cells and did not allow relatives to visit the suspects—nor even the UHRC representatives, whose constitutional mandate it is to visit and inspect police stations and posts.158

In 2003, safe houses continued to be a permanent feature of the Ugandan system of detention and provided ample opportunity for torture and interrogation of suspects against whom detaining authorities did not have, or did not care to find, sufficient information to bring formal accusations or indictments.

No Reasonable or Probable Cause

According to the Ugandan constitution, the detaining authorities are required to show reasonable or probable cause for continuing to hold a defendant past the forty-eight hour period. In February 2003, the UHRC reiterated the standard for reasonable and probable cause for detention as set forth in Ugandan law. “Reasonable” and “probable cause” are defined as:

An honest belief in the guilt of the accused based upon full conviction founded upon reasonable grounds for the existence of a state of circumstances which assuming them to be true would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime implied.159

In the case it was examining, the Commission found that a suspect had been detained in a UPDF barracks—an ungazetted place—and beaten for ninety-three days. As a result, he was left impotent.

Neither the UPDF nor the prosecutor showed reasonable or probable cause for the detention, which would have been required at the forty-eight hour stage if that provision in the constitution were honored. Instead, they hid this long period of detention. When the case finally came before a court, the prosecution learned that the guilty party was someone else. The Commission concluded that there was no honest belief in the guilt of the complainant, as he was never taken to court and the arrest was based on “mere guesswork,” and not upon any reasonable or probable cause that he had committed a crime.160

The lack of reasonable or probable cause to prolong the investigation or detention may be one reason why the rules against ungazetted detention places and holding persons longer than forty-eight hours are broken so frequently. That is particularly the case when intelligence agencies or military hold a suspect; they are not interrogating him with an eye to preparing a judicial case against him.

Many times the police receive a suspect from the UPDF, ISO, CMI, or others, without anything but a confession, and sometimes without even that. Yet the military and security officers expect the police and prosecutor to see to it that the suspects remain in jail, according to what the police have told Human Rights Watch.

In a case that appears somewhat typical, the UPDF and DISO were involved in the arrest and detention of a man from Gulu held from October 2002 until February 2003, when the court required the man be produced pursuant to habeas corpus. While in court, the UPDF asked the police, in the presence of witnesses, to “find a charge against him.”161

Even in treason or terrorism cases, the suspect is charged in a magistrates’ court (though the trial will eventually be heard in the High Court). Although these offenses bear the death penalty, the charges are stated with few or no details—presumably because the authorities do not have any details or indeed any facts available to be more specific about what the accused did that violated the law. In many cases, according to the testimonies of many victims, the authorities have a coerced confession.

Charges brought in a court martial have been even less detailed. For instance, the General Court Martial charges in the case of Dr. Steven Wilson Mukama described above contain a “Count I”, which states, after listing the names of the accused, that they “and others still at large at various places in Uganda did commit acts of Terrorism.” There was no place or date indicated, nor name of any rebel group. Count II is a description of the gun which this group of six men are alleged to possess, “without a valid firearms licence.” Count III, the last count in the charge, is that these accused “and others still at large were found in unlawful possession of Government Stores to wit one plain green military cap and a pair of Captain’s pips the property of Uganda Peoples Defence Forces.”162

Based on these three allegations—one lacking in all detail, another seemingly unsubstantial (especially in a country where many wear cast-off military clothes), and a third stating that all six were in possession of a gun—a group of defendants has been kept in prison for more than a year.

Forty-Eight Hour Law for Charging Detainees Routinely Broken

Under Article 23 of the Ugandan constitution, a suspect may be detained for only forty-eight hours without charges, that is, without presentation of the accused to a judicial authority with charges that he violated the law.163

According to the testimonies HRW and local human rights groups among others have gathered, in Uganda, severe torture tends to be applied soon after arrest in order to compel the suspect to provide information. It may be renewed later as well. But the danger of torture and ill treatment is particularly high—in all countries where torture is practiced—during the initial period. If the detaining authorities are required to charge the suspect within the first forty-eight hours, in front of a civilian court—and actually comply with that requirement—the likelihood that he will be tortured immediately after arrest decreases. Forty-eight hours is not sufficient for him to lose the marks of torture. A court observing such marks may well discard the suspect’s testimony or impose sanctions on the detaining power, and his relatives may well raise the alarm.

Yet this rule is “generally disregarded or dispensed with,” according to FHRI, a Ugandan human rights group.164 “Illegal detentions continue to be the biggest challenge: detained persons stay in police cells beyond the 48 hours” mandated in the constitution, according to the UHRC—and referring only to police detention.165 The UPDF and particularly its intelligence arm, the Chieftaincy of Military Intelligence, have held “rebel” combatants and other suspects in barracks or CMI locations for months at a time.

In his ruling on the case of the Gulu Prisoners (see above), the High Court judge, citing Article 23(4)(b) of the constitution regarding the forty-eight hour rule, said, “There is no other short cut to this Article. Whatever crime a person is suspected to have committed, the Constitution makes it imperative for him or her to be taken to Court not later than forty-eight hours. Any time beyond that becomes unlawful arrest or detention.”166

FHRI regularly visits police stations. It has found that some suspects are detained in a separate wing of police stations and are referred to as “terrorists.” They are under the jurisdiction of the JATF, not the police. These terrorism suspects are admittedly detained longer than forty-eight hours, purportedly because of the “nature” of terrorism. Some have been released and re-detained.167 The police told FHRI, “‘We have no files on them, we only keep them here. Whenever CMI wants their suspects, they come and pick them. Sometimes they release some of them.’”168

Bail and Habeas Corpus Inaccessible: Shortage of Defense Lawyers

In Uganda, in capital cases only the High Court may grant a petition for bail. There are a limited number and locations of the High Courts in Uganda.169 Bail in non-capital cases is at the discretion of the court and in some events may be granted after only 120 days in remand, considerably less time than the 360 days that must lapse before bail may be granted in capital cases. (see below)170

The most successful recourse available for suspects detained incommunicado in politically motivated cases is for their relatives, friends, or associates to retain an attorney to seek a writ of habeas corpus from the High Court, the only court authorized to issue such a writ.171 That writ directs the agency believed to be holding the suspect to show cause why he should not be released.

As illustrated in the cases discussed above, even the application for the writ of habeas corpus may spark the agency into action. If it wants to retain the suspect in custody, it promptly brings charges—treason or terrorism—against him and he is sent to Kigo or Luzira Prison, where to the best of HRW’s knowledge there is no torture. The writ can be successful in stopping torture, and may prevent a summary execution, but it is not as helpful in producing the release of the suspect, as the authorities almost always charge the suspect instead of producing him in court in response to the habeas corpus, or releasing him.172

But both bail and habeas corpus applications may depend on the accused having a lawyer to represent him or her. And although the accused has a right to counsel at the time of detention,173 most detainees are poor and do not have an attorney.

The right to state-funded counsel arises only in a capital case, and even in such cases, the accused does not have a state-provided attorney until the time of trial, after the prosecution has had a year (360 days) and more to prepare the case.174 Some criminal defense attorneys back away from political cases, on account of indirect threats from people “close to” the ruling party. In addition, many persons—attorneys and others—commented at the time of Human Rights Watch’s September 2003 visit to Kampala that their telephone and email use was being monitored by security, citing recent statements by President Museveni.175

Those who do not have sufficient funds to hire an attorney to speak for them at the time of their detention are likely to spend much longer in custody and are at greater risk of torture.

Lack of Access to Medical Treatment

The Uganda Constitution requires that a detainee shall be allowed reasonable access to his personal doctor and to medical treatment, including private medical treatment.176 Nevertheless, torture victims frequently report that they received no medical treatment while in the hands of their interrogators—even when such illegal detention lasted months. Many reported that the first medical attention they received was in prison, or upon release. In some cases, it seems that the authorities belatedly realize the damage they or their colleagues have done with torture and/or medical neglect, and even seem to let the victim go out of pity. They nevertheless attempt to cover up their liability by releasing him with warnings to keep quiet.

Part of the necessary cover up is a medical statement that is incomplete or inaccurate. In one case of torture, a military doctor provided the diagnosis of hernia that required surgery.177 But according to the victim, and a doctor who later examined him, he did not suffer from a hernia but from CMI interrogators who stabbed his testicles with needles. He did not receive medical care and the wound “became rotten,” in his words.178 The African Center for Treatment of Torture Victims (ACTV) is active in treatment of torture victims, and the UHRC refers cases to it.

The ACTV was founded by a medical doctor who was himself tortured in 1981 under the second government of Milton Obote. The ACTV has treated victims of LRA torture as well as victims of government abuse. While the center was able to provide physical therapists, psychologists, and others to treat the torture victims for six years, funding ran out and this center, the only place in Uganda where such treatment was available, ceased providing such care.179

Right of Access to Family Members Denied

It is during the first days of detention that torture is most likely to occur, and when access to family and others is must crucial to curb torture, as they would be in a position to receive the suspect’s complaints and serve as witnesses of his physical condition. Without outside contact, a detainee is also far more vulnerable to physical and psychological pressure to confess to crimes he or she may not have committed.

The Ugandan constitution provides the detainee the right to have his family members advised of the detention “as soon as practicable” and the family member has a right to “reasonable access” to the detainee.180

Use of Confession Evidence

In the criminal justice system, evidence collected by the police is admissible in court against the accused, if it meets various criteria. The police are the legally designated government agency for this purpose. Most of the evidence gathered by the UPDF, CMI, ISO, and other services is derived from confessions which are not admissible in evidence if they are not taken by the police pursuant to the evidentiary requirements—one of which is that the person giving the statement has not been coerced but speaks freely.

From the testimonies gathered, it appears that coerced confessions are used as the basis for detention, and that safeguards against this abuse are ineffective. The use of these confessions to secure prolonged detention encourages the interrogators to use torture in order to extract confessions, rather than locate and rely on other evidence.

155 Ugandan Constitution, article 23 (2) provides: “A person arrested, restricted or detained shall be kept in a place authorised by law.” The minister of internal affairs must publish in the Ugandan gazette the location of detention places.

156 UHRC, Annual Report, p. 51.

157 FHRI, “Human Rights Reporter,” p. 16.

158 UHRC, Annual Report, p. 74.

159 Steven Semugoma v. Magidu Mafuge & 5 Others [1994] II KALR 108, cited in Stephen Gidudu vs. Attorney General, UHRC, February 26, 2003.

160 Ibid.

161 Human Rights Watch interview, civil litigation advocate, Kampala, June 16, 2003

162 Uganda vs. Mukama Wilson Stephen, et al., General Court Martial, Case No. UPDF/GCM/017/2002, September 16, 2002.

163 Ugandan Constitution, article 23 (4).

164 FHRI, “Human Rights Reporter,” p. 48.

165 UHRC, Annual Report, p. 18.

[166] Ruling, In the matter of Application for the Writ of Habeas Corpus and Subjuciendum by [applicant], High Court at Gulu, February 17, 2003.

167 Human Rights Watch interview, Livingston Sewanyana, FHRI, Kampala, June 12, 2003.

168 FHRI interview with officer in charge at Central Police Station, Kampala, April 2002, cited in FHRI, “Human Rights Reporter,” p. 48.

169 UHRC, Annual Report, p. 49: The High Court conducts sessions by riding circuit, that is, by judges physically moving from one courthouse to another. High court circuits will be created at Masaka, Mbarara, Fort Portal, Gulu, Mbale, Jinja, and Nakawa. Plans are underway to extend them to Kabale, Masindi, Soroti, and Arua. Ibid.

170 Uganda Constitution, article 23: (6) Where a person is arrested in respect of a criminal offence . . .

(b) in the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days;

(c) in the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for three hundred and sixty days before the case is committed to the High Court.

171 Habeas corpus is Latin for “you have the body.” The writ dates back hundreds of years in English common law. Traditionally anyone may seek a writ, but in practice this job has devolved to lawyers.

172 Human Rights Watch interview, Joseph T., Kampala, June 12, 2003. Joseph is not his real name. Human Rights Watch has received reports, however, that at least three prisoners held in Kigo Prison were removed for further interrogation in CMI or JATF although the prisoners were told that they were being picked up to be taken to court. Email, anonymous researcher to Rone.

173 Uganda Constitution, article 28 (3):

Every person who is charged with a criminal offence shall . . .

(d) be permitted to appear before the court in person or at that person's own expense, by a lawyer of his or her choice;
(e) in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State . . . .

174 If the defendant is to be charged in a court martial, he must have an attorney present, so an attorney is appointed by the ministry of defense from among designated ministry of defense attorneys immediately before the charges are presented.

175 See Badru D. Mulumba, “So, did Museveni listen in to Ogwal’s heart-to-heart?” The Monitor, Kampala, October 1-6, 2003.

176 Uganda Constitution, article 23 (5), (6).

177 Human Rights Watch saw a certification from UPDF medical services for the victim, age twenty-six, whose testicles were removed because of a “hernia.”

178 In this case, the victim risked retraumatization when the UHRC sent him back to CMI, his torturers, for a medical checkup. Instead, he went into hiding. Human Rights Watch interview, doctor, Kampala, June 16, 2003.

179 Human Rights Watch interview, Dr. Fred Nsamba, ACTV, Kampala, Uganda, June 16, 2003.

180 Uganda Constitution, article 23 (5) (a), (b).

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April 2004