The law keeping Ugandans behind bars

STEPHEN KAFEERO

HERBERT Solomon Kaddu attempted to attack an Anglican bishop on Easter Sunday in 2018, while the latter was preaching to a packed cathedral. Kaddu was restrained and later charged, but acquitted in June 2019 on account of his mental health impairment. 

But more than two years later, Kaddu remains in prison. Unlike his fellow inmates, who have been sentenced to specific terms, Kaddu’s incarceration is indefinite, until such a time as Uganda’s minister of justice orders his release. 

The number of inmates in the same situation as Kaddu is unknown as the government has no known registry of such cases. Documented cases point to people with psychosocial disabilities, who are found not guilty by reason of insanity, spending decades in prison. They are sometimes confined for more time than the sentence their crime attracts. 

In the absence of a national registry, which would catalogue these cases and ensure that the minister takes action, it often falls to activists and non-governmental organisations to identify cases and lobby and pressure a reluctant government to act.

The number and condition of detainees with psychosocial disabilities awaiting minister’s orders, especially in prisons in rural Uganda, remains unclear. Already, the country’s prison system is struggling with a high number of inmates and limited resources, so prisoners with mental health impairments are low-priority. Uganda’s largest prison, Luzira Maximum Security Prison in Kampala, for example, is designed to house 1 700 but has close to 20 000 inmates. The official capacity of the country’s entire prison system was 17 304 in 2019. 

Uganda has a prison population of more than 65 000 inmates, mostly pre-trial detainees and remanded prisoners. This is attributed to an ill-equipped judiciary that is unable to handle all the cases. Inmates spend years, sometimes longer than their would-be sentences, on remand, which makes the plea bargain system attractive but unjust. 

Court challenge

Kaddu and lawyer Abunia Godwin Toko teamed up with the Network of Public Interest Lawyers (Netpil) – an initiative by the Public Interest Law Clinic at Makerere University’s school of law to promote public interest and pro bono litigation – on 21 December 2020 to challenge the law. They filed a petition against the attorney general in the Uganda high court. 

The petition seeks an order to the effect that the continued detention of people with mental health needs, such as Kaddu, after they are found not guilty on grounds of mental health impairment, is a violation of their rights.

Some of the violations centre on the right to freedom from discrimination as enshrined under Uganda’s 1995 Constitution, which governs the right to liberty. Their case also revolves around Kaddu’s right to human dignity and protection from inhuman treatment, and the violation of his right to a fair hearing and access to justice. 

The case also seeks to hold the country accountable to its international signatories. Uganda is party to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. Both instruments emphasise the right of everyone to the highest standard of physical and mental health.

In another petition filed in the high court on 7 January, 17 people who are awaiting the minister’s orders wanted the court to relieve the minister of such powers. This would allow the courts to hand down appropriate orders when handling the cases of suspects with mental health impairments without having to revert to the minister.

“The sharing of powers of detention by the judiciary and the executive, such as in this case of the petitioners, herein blurs and offends the constitutional doctrine of separation of powers and to the extent renders the detention of the petitioners unconstitutional,” reads the petition. 

The petitioners’ lawyers want the court to order the immediate release of those petitioners certified as recovered in their most recent medical evaluation, with those deemed still in need of care released to a treatment facility and released on recovery. Arthur Nsereko, the head of Netpil Uganda, says the two petitions will be merged into one.

The law

Under Section 11 of the Penal Code Act of Uganda, a person will not be held criminally liable “if at the time of doing the act or making the omission he or she is through any disease affecting his or her mind incapable of understanding what he or she is doing or of knowing that he or she ought not to do the act or make the omission”.

But Section 48(1) of the Trial on Indictment Act says that any person found innocent as a result of their mental impairment must be remanded to a prison pending an order from the minister of justice for their release. And such orders are not always made.

In Eric Bushoborozi vs Uganda in July 2015, the court heard how Bushoborozi had been waiting since 2006 for the minister’s order as to where he should be taken for treatment. Bushoborozi was detained in 2002 and tried, but found not guilty by way of “insanity”. He was then remanded in December 2006. Overall, he was remanded in custody for 14 years before the judge handed down the order releasing him. 

The judge in this case ruled that the courts have the authority to release people with mental health needs unconditionally, without waiting for the minister’s order. However, the courts continue to follow the provisions of the Trial on Indictment Act to the letter, perpetuating this injustice.

Kaddu has bipolar disorder and was found not culpable because of this, but was sent to Luzira prison in 2018 under the same laws, long after the Bushoborozi judgment.

The aim of their petition, Toko says, is to get a pronouncement from the court to put the matter to rest once and for all. 

The Mental Treatment Act, which remains the primary law on mental health in Uganda, fails several international mental health standards. First, the law uses derogatory terms such as “idiot” to define people with mental health impairments. Second, it follows the colonial model that views people with mental health needs as a problem in society, and gives local council leaders and the police enormous powers to detain, seclude from the public and generally treat them as less than human.

Recently, Uganda’s parliament passed what has been described as a progressive instrument, the Mental Health Act, which corrects the errors in the old law. President Yoweri Museveni assented to the bill on 25 December 2019, but the new act can only come into effect on a date appointed by the line minister through a statutory instrument, which is yet to be done. 

Judicial activism

For decades, Ugandan judges have made recommendations for law reform relating to criminal “lunatics” remanded pending the minister’s orders. These recommendations are contained in their reports on criminal sessions and decisions. 

A review of related court decisions shows that judges have opted to use judicial activism in specific cases. But without an amendment of the law, the courts, with their huge backlog of cases, cannot keep up with the violations that have piled up over the years. 

Judges have proposed, for example, that after a trial court makes a special finding that the charged person is not guilty by reason of “insanity”, the judge must make special orders as to the discharge or continued incarceration of the prisoner in an appropriate place.

Court documents indicate that 15 of the 17 petitioners were declared “insane” by their individual trial judges, who followed the existing law and directed them to be detained pursuant to a minister’s order. The remaining two, James Mpanga and Isiiko David, who were sentenced under the mandatory death sentence regime, continue to be held in prison without sentences and on account of mental health impairment as per the orders of the minister, which have never been reviewed.   

“The petitioners have been treated segregatively and unequally under the law in further contravention of the Constitution and infringement upon their rights to equal protection of the law. It is just and fair that the petitioners be unconditionally released from detention to bring an end to the indefinite infringement upon their constitutional rights,” said the petitioners’ lawyer.

The first hearing in Kaddu’s case is scheduled for 10 March, according to his lawyer Emmanuel Candia. Such petitions usually take years to be determined, but Candia is hopeful that the court will render a verdict in 2021 based on a “quick” hearing date the judge has scheduled.

Uganda Prisons Service spokesperson Frank Baine said it submits annual reports on each of the cases under its care. He added that the service has handled cases of people with mental health impairments for years and has the capacity to manage them.

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