Human Rights in the Domestic Perspective

Presentation by Nasseje Ularia

Right to a speedy trial (or trial within a reasonable time) (and constitutional remedy if not
tried within a reasonable time).

Article 28 of the 1995 Constitution of the Republic of Uganda1 provides that;

(1) In the determination of civil rights and obligations or any criminal charge, a person shall be

entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal

established by law.

In the domestic perspective, the issue of reasonable time and whether there is a constitutional
remedy is provided in the case of;

Ssemanda Alex Burton V Uganda, Misc. Crim. Application No. 157/1999 (HC)2.

The brief facts of this case are that the applicant was charged before Buganda Road Chief
Magistrates Court with the offence of defilement on 5 th April 1998. He was remanded into
custody, appearing periodically for mention until his committal to this court for trial. On the 16 th
March 1999 he was committed to this court for trial. Since then to this day his case has not been
listed for trial. On the 26th August
1999 he applied for bail and his application was heard this
morning. The applicant is unrepresented. Mr. David Ndamurani Ateenyi, a State Attorney,
represented the state.

The notice of motion set out two grounds for this application. Firstly, that the applicant has been
on remand for twelve months which at the hearing of the application the applicant amended to
read twenty-one months the actual period he has spent on remand. Secondly that the applicant is
facing terrible loses of his projects due to his absence. At the hearing of the application the
applicant relied on both his notice of motion and the affidavit in support. In addition, he urged
that his right to a speedy trial had been infringed. Ever since he was committed he claimed six

1
Article 28 of the 1995 Constitution of the Republic of Uganda
2
Ssemanda Alex Burton V Uganda, Misc. Crim. Application No. 157/1999 (HC)

1
sessions had been held at Kampala but his case had not been listed for trial among them. Even
now he claimed a session was going on but his case was not one of those to be tried. He asserted
that cases that were committed later than his case had been listed for trial in some of the current
and past sessions. He therefore prayed that he be released on bail pending his trial.

Mr. David Ndamurani Ateenyi, the learned State Attorney who appeared for the state, opposed
this application. He submitted that the application was incompetent on two grounds. that it did
not state the law under which it was brought, Secondly that it did not disclose any exceptional
circumstances as required by Section 14 A of the Trial on Indictments Decree and that the courts
were clogged so much so that there are prisoners who were committed even before the applicant
who the state is anxious to try but this has not been possible because the courts are clogged. The
counsel for the applicant asked whether the applicant had no remedy, in spite of the provisions of
Article 28 (1) of the Constitution conferring the right to a speedy trial and the state Attorney
replied that the applicant was without remedy, and his application for bail could only be
considered in terms of Section 14 A of the Trial on Indictments Decree.

Counsel also referred to Article 23(6)(a) provided," Where a person is arrested in respect of a
criminal offence- (a) the person is entitled to apply to the court to be released on bail and the
court may grant that person bail on such conditions as the court considers reasonable. And that
Article 28 (1) of our Constitution provides, "In the determination of civil rights and any criminal
charge, a person shall be entitled to a fair, speedy and public hearing before an independent and
impartial court or tribunal established by law." Among other things these provisions seek to
ensure that an accused does not suffer unduly excessive pre-trial incarceration while waiting for
trial of any criminal charge against him.

Therefore, as per Judge Egonda Ntende noted that, I cannot agree that an accused in those
circumstances can be without remedy. As I noted in the case of Shabuharia Matia v Uganda
High Court Criminal Revision Case No. 0005 of 1999 at Masaka District Registry, 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 " I am aware that a stay of prosecution is not, except in the extreme
of cases, the only remedy available to a court. Depending on the circumstances of the case, bail,
an order fixing a trial date, refusal of adjournment, dismissal of charges and discharge of

2
the accused are other possible remedies that may be considered in an appropriate case."
Hence in the present case the applicant has not had a trial within twenty-one months. It is not
known when his trial will be listed for trial. He has continued to be detained in custody pending
his trial. I am informed that the courts are clogged with cases and therefore it is not known when
his trial will take place. I find that his right to a speedy trial is seriously threatened, if not
already infringed. In those circumstances to prevent excessive pre-trial incarceration, I am
inclined to allow this application and release the accused to bail.

I admit the accused to bail on the following terms. He shall deposit in this court a sum of Shs.
500.000/= cash. He shall produce for approval before the Deputy Registrar (crime), High Court
of Uganda two sureties to be bound in the sum of Shs.1.000.000/= not cash. He shall appear
before the Registrar or Deputy or Assistant Registrar as the case may be, every third Wednesday
of the month until his trial or until further orders of this court.

The 1995 Constitution3 provides clear protections for the rights of pre-trial detainees. Firstly, it is
the duty of the State to bring the suspect to justice without delay and to produce the suspect
before a competent court within 48 hours. Secondly, Article 28 (3) (a) of Uganda’s 1995
Constitution provides for presumption of innocence until proven guilty by a competent court.
Thirdly, Article 28 (1) provides an accused person the right to a fair and speedy trial. This is
echoed in Article 126 (2) (b) which provides that justice shall not be delayed, this is in line with
the equity maxim that “justice delayed is justice denied.

According to article 50(1) of the 1995 Constitution provides that, any person who claims that a
fundamental right or freedom has been infringed or threatened is entitled to apply to a competent
court for redress, which may include compensation.

According to the article; Justice Delayed Is Justice Denied: The Right to A Speedy Trial4

Pre-trial detention is the stage in the criminal justice system when a person accused of
committing an offence is arrested and detained as he/she awaits trial and the decision of court. It
is the duty of the State to bring the accused person to justice without delay. This is in accordance
with the Constitutional right to a fair, speedy and impartial trial. However, delays in disposing of

3
Chapter 4 of Uganda’s 1995 Constitution
4
article; Justice Delayed Is Justice Denied: The Right to A Speedy Trial by Catharine S. Namakula (2014)

3
criminal cases are rampant in Uganda. This Article imposes a duty on the prosecutor and the
Magistrate or Judge to try the accused person within reasonable time or without delay.

A speedy trial guarantee, means that the accused must be brought to trial or released within a
reasonable amount of time. The government is not legally permitted to lock people up
indefinitely without trying them. Persons charged with criminal offences should have their
cases handled expeditiously (with speed and efficiency). Therefore, a violation of this right is
both a violation of international law and the Constitution of Uganda.

Article 445 of the Constitution states that there are four non-derogable rights (these are rights
that cannot be taken away from an individual) i.e. freedom from torture, freedom from slavery,
the right to a fair hearing, and the right to an order of habeas corpus. Therefore, it is clear that the
right to a fair and speedy trial is a non-derogable right that is guaranteed and cannot be taken
away from an individual under any circumstances.

Violation of the right to a speedy trial is not just a violation of the fundamental rights to a fair
hearing, but also a violation of other fundamental human rights. Though the accused may be
innocent, the accused under delayed detention suffers not only mental/ psychological agony,
separation from family members, deprivation of homely comforts, loss of liberty, loss of
monetary income, loss of confidence and trust in the judicial system, but also public humiliation.
The family members also face humiliation and social stigma. The children are deprived of
fatherly love, affection and protection and economic support. The wife deprived of the husband’s
protection may have to struggle hard to support the family.

The Constitution requires the Police to produce a suspect arrested and detained in court within
forty eight (48) hours. Where this is not done it amounts to unlawful imprisonment which is a
civil wrong for which the victim may sue for damages.

Where the circumstances do not favor trial within a reasonable time, for example, where the
investigation process is too lengthy, the accused person should be released on bail. Bail is the
release of an accused person from detention pending trial or until Court takes a decision on
his/her case.

5
Article 44 of the 1995 Constitution of the Republic of Uganda

4
The Uganda Human Rights Commission receives complaints on virtually all human rights
violations. It investigates complaints in appropriate cases and compensation is awarded to
victims of human rights violations.

When it comes to constitutional matters before the Constitutional Court the standard is set even
higher. Article 137 (7) states, ‘Upon a petition being made or a question being referred under this
article, the Court of Appeal shall proceed to hear and determine the petition as soon as possible
and may, for that purpose, suspend any other matter pending before it.

In the case of Uganda V RoseMary Tesimana Crim. Rev. Cause No. 13/1999 (HC)6

The brief facts of this case are that the accused was charged with murder of Gataro Paul, who I
understood from the bar was her husband, on the 20 th February 1991. She was arraigned before a
magistrate's court on the 1st March 1991. On that day the court noted, “Accused further remanded
and looks to be of unsound mind. She is ordered thus she be taken to hospital for examination.”

In spite of this order, the accused remained in custody in Kalisizo and Masaka Government
Prison, until about May 1991, when the prosecution started reporting to court that she was sick.
On 26th July 1991 she was reported to be in Butabika Hospital. This file was regularly mentioned
every two weeks and it was routinely noted that the accused was sick, or absent or in Butabika
Hospital and that there was no police file up to 10 th February 1994. On this date the magistrate
issued a production warrant for the accused. This was regularly extended until the 30 th November
1994. It was never executed or complied with the by Prison authorities! Neither was any
explanation provided to or sought by court. She was subsequently taken to hospital in Butabika
and did not return until eight years later, albeit without a report!

It was stated that, even though a Magistrates court has no jurisdiction to try capital charges,
accused persons on such charges are brought before it to ensure that, among other things, the
accused's rights are protected. The courts must be vigilant in doing so by consistently requiring
the prosecution to provide information as to the state of investigations. The magistrate may order
the prosecution to take certain action essential for the progress of the case by some date. And
where it is evident that the prosecution is not living up to its obligations, the magistrate can send
the file for revision to the High Court. Routine adjournments must come to an end.

6
Uganda V RoseMary Tesimana Crim. Rev. Cause No. 13/1999 (HC

5
In Uganda v Shabahuria Matia I drew the attention of the Minster for Justice together with the
Attorney General to the need for law reform along the lines of Decree 11 of 1972 in order to
stem injustice arising out of delayed action on the part of the state to commit for trial or
otherwise deal with accused persons facing charges before the courts. This decree provided for
dismissal of capital charges if an accused had not been committed for trial within fifteen months
and a lesser period for none capital charges where no trial had taken place

The Guarantees for the right to a fair hearing are spelt out in Article 28(3)(a)-(g)

i) Article 28(3)(b) & (f) - Right to be informed of the nature of the criminal offense in
a language understood by the accused and the right to an interpreter.

This right emanated from the Miranda rights were introduced by the US Supreme Court. These
rights were meant for the suspects to have their rights exercised during arrest. The Miranda rights
were and still are reflected in the statement which has to be uttered by a police officer carrying
out the arrest to emphasise the person’s right to silence that, “You have the right to remain silent,
anything you say can and will be used against you in a court of law’’. Therefore, this outlawed
any other form of arrest and by any other security agency especially when dealing with citizens.
The Miranda statement was intended to protect the suspects to refuse to answer self-
incriminating questions and the officer was free to ask questions before an arrest but must inform
the suspect that the questioning is voluntary and that he/she is free to leave at any time.
According to the Miranda rights, the officer had to ensure that the suspect understands his/her
rights and that is to say, should the suspects not speak English, the rights had to be translated in
the language that is understood by the suspect.

In the United Kingdom, the Miranda Rights statement is uttered as ‘You do not have to say
anything unless you wish to do so, but anything you do say will be taken down and may be given
in evidence.
Article 23(3) of the 1995 Constitution 7 provides that, a person arrested, restricted or detained

7
Article 23(3) of the 1995 Constitution

6
shall be informed immediately, in a language that the person understands, of the reasons for the
arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

According to the article; “LANGUAGE FAIR TRIAL RIGHTS IN THE UGANDA

CRIMINAL JUSTICE SYSTEM” by Catherine S. Namakula" (2014)8 states that;

The significance of language rights to the fulfilment of the non-derogable right to fair trial' has
been substantiated by scholarly findings.' Laws of Uganda contain language fair trial rights and
the practice to ensure the right of the accused person to use the language in which they are best
knowledgeable. From the colonial era, English is the language of the law and legal action in
Uganda and as per Article 6 of the 1995 Constitution 9. Legislation is enacted in English, and
the language of formal courts is English. However, English being the official language of
Uganda, is mainly learnt in school and mostly used only in formal settings; it is therefore not
used by many Ugandans competently. Thus, translation/interpretation is a fundamental tool of
court proceedings. Translation refers to either written or oral transfer of thoughts and ideas from
one language into another.

Language is broadly defined as any organized means of conveying or communicating ideas

especially by human speech, written characters or sign language thus, speech and hearing
disability are addressed as language obstacles.

The interpretation of language is a fair trial rights based on the position of language rights in the
minimum guarantees of fair trial. The minimum rights are enumerated in Article28 (3) of the
Constitution of Uganda to include the following: (a) the presumption of innocence; (b)
information on the nature of the offence; (c) adequate time and facilities for the preparation of
the defense; (d) presence and legal representation of the accused at trial; (e) legal aid; (f)
assistance of an interpreter; and (g) facilitation to examine and cross-examine witness.

The Civil Procedure Act (CPA) therefore directs that English is the working language of courts
of record in Uganda under section 88

In the case of Andrea V R (1970) EA 4610, the appellant was a foreigner of Mozambique origin
who was convicted of being in possession of prohibited literature and he was convicted. The
8
Article; “LANGUAGE FAIR TRIAL RIGHTS IN THE UGANDA CRIMINAL JUSTICE SYSTEM” by Catherine S. Namakula" (2014).
9
Article 6 of the 1995 Constitution
10
Andrea V R (1970) EA 46

7
accused appealed on grounds that; (a) he had been denied the right to employ an advocate and
(b) he had been denied the right to have an interpreter to translate the proceedings into his
mother tongue, or into Portuguese as per (s. 77 (2) (e) and (f) of the Kenya Constitution). the
statement read to the accused was in Swahili when it had been made in English. On appeal court
stated that;

(i) there was no evidence that the appellant ever asked for an advocate;

(ii) there was a possibility that the appellant had made a statement and that he had been tried in

circumstances where there was absence of an interpreter and the appellant might have
misunderstood.

The Constitution of Kenya deals with the question of interpretation in courts in s. 77 (2) to which
we have already referred. It says that every accused person

“(b) shall be informed as soon as reasonably practicable, in a language that he understands and in

detail, of the nature of the offence charged; (f) shall be permitted to have without payment the
assistance of an interpreter if he cannot understand the language used at the trial of the charge.”

The accused is to be informed of the nature of the charge against him “in a language that he
understands”. He is to be given an interpreter at Government expense if he does not understand
the language of the Court.

Persons with Disabilities or Inability to Understand Proceedings-In Uganda, an estimated

7.2% of the population or 2.5 million are persons with disabilities where a number of them have
speech or hearing impairment: deaf, dumb or deaf-mute as per section …of the Evidence Act.
Some of these have acquired formal education and are able to use standardized sign language. In
trials involving such persons, the judiciary seeks specialized interpretation from an existing
institution in the country. Interpretation in proceedings involving a person with communication
impairment is a typical case of double interpretation which is comparable to chain translation at
the international criminal tribunals.

In the case of Jean Victor Beaulac V The Queen (1999) 1 SCR 768,11

11
Jean Victor Beaulac V The Queen (1999) 1 SCR 768

8
The accused was charged with first degree murder His first trial resulted in a mistrial and his
conviction the second trial was overturned by the Court of Appeal and a new trial was ordered.
Despite unsuccessful applications in the earlier proceedings, the accused applied again, during a
hearing prior to his third trial, for a trial before a judge and jury who speak both official
languages of Canada pursuant to s. 530 of the Criminal Code. The judge, who was not the judge
before whom the accused would be tried, dismissed the s. 530(4) application. The trial proceeded
in English and the accused was convicted. On appeal, the Court of Appeal decision of the judge
at the pre-trial hearing on the language issue. This appeal deals solely with the question of the
violation of the accused’s language rights.

Held: The appeal should be allowed and a new trial to be held before a judge and jury who speak
both official languages ordered.

In Cheung Shing v R. the court acknowledged the phenomenon of persons with impairment in
speech However, reaffirmed that an accused who is unable to understand the proceedings, either
because they are deaf and dumb and have not learnt to communicate by sign language, or
because they speak only some language for which no interpreter can be found, cannot be allowed
wholly to escape criminal responsibility, but special measures have to be taken for their
protection. The measures to be taken depend on the circumstances of each particular case.

ii) Article 28(3)(a) - Right to Presumption of Innocence 12,

The right to presumption of innocence; This is a very important face to criminal trials in common
law jurisdictions. The right form part of the criminal doctrine that places the burden on the
prosecution to prove the guilt of the accused person. A/cto28(3)(a),,very person who is charged
with a criminal offence shall be presumed innocent until proved guilty or until that person has
pleaded guilty.

Misiki sosan and another v Uganda, Crim A. No. 7/200213 The prosecution case as accepted
by the learned trial judge was that one Kasaga Vincent, the victim of the murder, was a brother
of the first appellant. Before the murder both of them lived at Kananage village, Buyindo zone in
Kamuli District. The deceased had no wife and lived alone in his house. The wife and the son of

12
Article 28(3) (a)
13
Misiki sosan and another v Uganda, Crim A. No. 7/2002

9
the first appellant died in succession. The deceased was suspected to have caused their deaths by
witchcraft. The first appellant and his son, who was the second accused at the trial, hatched a
plan to kill the deceased. They sought for the services of the second appellant to execute their
plan. According to the testimony of Kolostiko Nabaiga, PW1, whenever the first appellant went
out drinking he would utter threats that he would kill Kasage.

On the 29th March 1999 the body of the deceased was found in his house by a wife of the late
Byansi Yakonia. She made an alarm which was answered by many people including PW1. A
report was made to Kamuli Police Station. On the following day the police came and took the
body to Kamuli Mission hospital for post mortem examination. The autopsy was performed by
Dr. Nyalia James, PW6. He found deep cut wounds on the left parieto region of the head and
bruises on both sides of the neck. He was of the opinion that the cause of death was either
subdural haemorrhage due to the penetrating wounds on the head or asphyxia due to strangling.

The police arrested the first appellant at the home of the deceased on 31/3/1999 as they were
preparing for the funeral. The arrest was based on suspicion because of the previous threats to
kill the deceased. The second appellant was arrested on 6/4/1999. His arrest was also based on
suspicion. He was found with a blood-stained T-shirt by Musere James, PW4. The blood stains
on the T-shirt were confirmed by the Government Chemist’s report to be of group O which was
the same blood group as that of the deceased. A charge and caution statement by the second
appellant, which was recorded by D/AIP Osera Sharphan, Pw2, was admitted in evidence as
exhibit P1. The second appellant confessed to having participated in the commission of the
offence. He also implicated the first appellant as one of the people who had hired him to kill the
deceased. The confession statement was admitted in evidence without holding a trial within a
trial to determine its admissibility.

In their defences both appellants denied the offence and put up a defence of alibi and that in the
instant appeal PW2 gave evidence at trial. He narrated the role he played as an investigating
officer. He also stated that he recorded the confession from the second appellant and read out the
statement in court. After that the prosecuting State Attorney sought to tender it in evidence as an
exhibit. At that juncture, counsel for the appellants objected to its admissibility on two grounds

10
namely: - that the second appellant denied making the statement and that the officer who
recorded it played a part in the investigation of the case.

The accused must get a fair trial as provided by article 28 (1) of the Constitution. The law is now
settled that in a case where the accused pleads not guilty, he or she is entitled to a full trial of all
the facts in issue. And Art 28(3)(a) which states that an accused is innocent until proven guilty.
Therefore, justices; Okello, Kitumba and Twinomujuni noted that PW2 was an officer
investigating the case. The confession recorded by the investigating officer is not admissible in
evidence hence, the convictions of both appellants are quashed and the sentences are set aside.
The appellants are to be set free forthwith unless they are otherwise lawfully held.

END

11