Communication 339/2007: Patrick Okiring and Agupio Samson (represented by
Human Rights Network and ISIS-WICCE) v. Republic of Uganda
Summary of the Communication
1.
The Communication was submitted by Human Rights Network – Uganda,
HURINET-U, and Women’s International Cross Cultural Exchange – ISIS-WICCE
(the Complainants), on behalf of Mr. Patrick Okiring and Mr. Agupio Samson (the
Victims), on 29 March 2007. The Complaint is brought against the Republic of
Uganda (the Respondent State).1
2.
The Complainants allege that, on 23 November 2004, the Victims were arrested in
Yumbe district in Uganda on allegations of membership in an armed group whose
aim was to forcefully overthrow the Government of President Museveni; however
they were neither charged nor brought before a court of law at the time of their arrest.
3.
The Complainants aver that on 15 November 2005, the Victims, along with 20 other
accused including Kiiza Besige (a former Presidential candidate), were charged with
treason and concealment of treason, and committed to stand trial in the High Court
of Uganda, in Criminal Case No. 955 of 2005.
4.
Further, the Complainants allege that on 16 November 2005, fourteen (14) of the
accused, including “the two (Peoples Redemption Army [PRA]) suspects,” were
granted bail by the High Court; however they were not released in spite of the release
orders. The Complainants further allege that, before commencement of the court
proceedings, “armed police/military personnel” cordoned off the court premises,
stormed the High Court and forcefully returned the bailed suspects back to Luzira
Maximum Prison.
5.
The Complainants state that on 17 November 2005, the accused were charged with
the offence of terrorism, and in the alternative with being in unlawful possession of
firearms, before the General Court Martial, in UPDF/GEN/075 of 2005. The
Complainants contend that these offences arose from the same facts as the treason
and concealment of treason charges, which were earlier preferred against the
suspects in the High Court on 15 November 2005.
6.
The Complainants aver that the Uganda Law Society filed a petition against the
Attorney General, Constitutional Petition No. 18 of 2005 – Uganda Law Society versus
the Attorney General, seeking the Court’s interpretation of the concurrent proceedings
in the High Court and the Court Martial, in respect of the same charges and in respect
of inconsistencies with the Constitution.
7.
The Complainants aver that the suspects filed another Constitutional petition,
Constitutional Petition No.12 of 2006, seeking the court’s pronouncements and
1
Uganda ratified the African Charter on Human and Peoples’ Rights on 10 May 1986
1
declaration in respect of the earlier petition No. 18 of 2005, the continued detention
of the bailed 14 suspects and their trial before the General Court Martial. The
Complainants state that the Constitutional Court ruled that the continued detention
and trial of the suspects before the General Court Martial was illegal, thus the
suspects should be released forthwith. However, the Complainants note that the
Government still did not comply with the ruling.
8.
The Complainants assert that following the Constitutional Court’s ruling, four
production warrants were issued by the High Court Registrar requiring the
Commissioner of Prisons to produce the suspects in Court to have their bail
processed; however the warrants were ignored and the Commissioner of Prisons did
not appear before the Court on all four occasions.
9.
The Complainants state that on 24 January 2007, the Attorney General and Director
for Public Prosecutions filed an application in the High Court seeking to review
and/or set aside the bail order issued in November 2005. On 1 March 2007, the
Complainants state that the Court declined to grant the Government’s application
for review of the bail orders and ordered the immediate release of the suspects.
Further, the Complainants aver that armed security personnel cordoned off the Court
premises and, following the Court’s ruling, entered the courtroom and forcefully rearrested the suspects, vandalized Court equipment, beat up the suspects and
deployed dogs to clear the courtroom of people.
10.
The Complainants state that on 02 March 2007, the Judiciary announced a sit down
strike for one week in protest of Government’s interference in Court activities and
disrespect for Court rulings. The Complainants further note that the Uganda Law
Society, and the East African Law Society, supported the strike by the Judiciary and
resolved to hold their own strike from 12 to 14 March 2007.
11.
The Complainants note that the Victims were subsequently charged with other
offences separate from the charges brought against them in Criminal Case No. 955 of
2005 and UDPF/GEN/075 of 2005, and were granted bail on these other charges. The
Complainants note that Mr. Patrick Okiring, having satisfied the requirements set by
the High Court, was out of detention on bail.
12.
Further, the Complainants state that records at the High Court at Arua and Criminal
Division at Kampala indicate that Mr. Samson Agupio was released from internment
at the government prison after a nolle prosequi was entered by the Director of
Prosecutions. However, the Complainants contend that the Amnesty Commission,
which was seized of the matter, has no record that Mr. Samson Agupio applied for
and was granted amnesty. Thus, the Complainants note that there is no information
on Mr. Samson Agupio’s whereabouts.
Articles alleged to have been violated
2
13.
The Complainants allege that Articles 5, 6 and 7 of the African Charter on Human
and Peoples’ Rights (the Charter) have been violated.
Prayers
14.
The Complainants seek the following:
(a) Recognition of the violations of human rights committed by the Respondent
State;
(b) An order of compensation for the Victims; and
(c) An order upon the Respondent State to in future desist from violating the
provisions of the Charter and respecting the individual rights of its citizens as
protected under the Charter.
Procedure
15.
The present Communication was received at the Secretariat on 11 April 2007, and
subsequently seized at the Commission’s 41st Ordinary Session, which was held from
16 to 30 May 2007, in Accra, Ghana. The parties were informed on 20 June 2007 and
requested to submit their arguments on Admissibility.
16.
On 28 August 2007, the Secretariat wrote to the Parties, reminding them to submit
their arguments on Admissibility by the end of October 2007.
17.
In a letter dated 13 September 2007, the Complainants wrote to inform the
Commission that Mr. Patrick Okiring, having satisfied the requirements set by the
High Court, was out of detention on bail. However, Mr. Samson Agupio had not yet
satisfied the bail requirements and remained in custody.
18.
In a separate letter, dated 13 September 2007, the Complainants transmitted
submissions on Admissibility to the Secretariat.
19.
On 30 October 2007, the Respondent State wrote to request the deadline for its
submissions on Admissibility be extended to 14 November 2007, and on 5 November
2007 sent a Note Verbale to the Commission addressing the Admissibility of the
Communication. Further, on 16 November 2007, the Respondent State sent a Note
Verbale informing the Commission that the matters raised in the Communication
had been considered and duly ruled on by the East African Court of Justice, and
attached the said decision to the letter.
20.
At its 43rd Ordinary Session, held in Ezulwini, the Kingdom of Swaziland from 07 to
22 May 2008, the Commission granted audience to the parties to complement their
respective written submissions orally.
21.
In a letter dated 13 August 2012, the Complainants informed the Commission that
Mr. Samson Agupio was released from internment at the government prison after a
3
nolle prosequi was entered by the Director of Prosecutions. Attached to this letter, the
Complainants submitted copies of decisions and sources of information referenced
in their submissions on Admissibility, in response to a request from the Secretariat.
22.
The Communication was subsequently deferred to, considered and declared
admissible at the 13th Extra-Ordinary Session. The Respondent State was informed
of the decision of the Commission by way of a Note Verbale dated 27 February 2013.
On the same day, a letter was sent to the Complainants informing them of the
decision and requesting that they make their submissions on the Merits within sixty
days.
23.
In a letter dated 14 November 2015, as no submission had yet been received, the
Commission informed the Complainants that if no submissions were received as
soon as possible, the Commission would proceed to strike out the Communication
for want of diligent prosecution. The Complainants’ submission on merits was
subsequently forwarded to the Commission through a letter dated 08 February 2014.
24.
The Complainants’ submission on the merits were forwarded to the Respondent
State through a Note Verbale on 24 September 2014. The Respondent State was
requested to forward its submissions on the merits of the Communication, within
sixty (60) days of this notification.
25.
Through Note Verbale dated 11 March 2015, the Commission granted the
Respondent State 30 working days, from the date of notification, to file written
submissions on the merits, if any. The Commission informed the Respondent State
that it would proceed on the determination of the merits on the basis of the available
information if the said submissions were not received within the stated period.
26.
Through a diplomatic note dated 05 May 2015, the Respondent State forwarded its
submission on the merits to the Commission. The submission was forwarded to the
Complainants on the 20 May 2015, granting the Complainants thirty (30) days to
submit any additional written observation or information; no additional submissions
were received.
The Law on Admissibility
The Complainant’s Submissions on Admissibility
27.
The Complainants submit that they have satisfied all the criteria on admissibility, as
set out in Article 56 of the African Charter. The Complainants submit that: the
authors of the Communication are indicated; the Communication is plainly
compatible with the Constitutive Act of the African Union and the Charter; the
Communication is presented in polite and respectful language; and is based on
information provided by the Complainants and Court documents, not on media
reports, in accordance with clauses (1), (2), (3) and (4) of Article 56.
4
28.
Regarding the requirement of exhaustion of local remedies, the Complainants
contend that the Complaint was brought before the Commission after the Victims
exhausted the local domestic remedies, however they did not obtain relief. The
Complainants aver that Article 56(5) is one of the most important conditions for the
admissibility of Communications, as it gives the State concerned the opportunity to
remedy the alleged violation through its domestic legal system. In support of this,
the Complainants cite the Commission’s decision in Dawda Jawara v. The Gambia.2
29.
The Complainants submit that domestic remedies exist in the Respondent State,
noting that the Article 129(1) of the Constitution of the Republic of Uganda (the
Constitution) makes provisions for judicial power to be exercised by the Supreme
Court, the Court of Appeal, the High Court and other subordinate Courts thereto.
30.
The Complainants aver that the Victims have engaged these judicial institutions,
noting that the Victims, along with the other suspects, applied for bail, and bail
orders were made by the High Court.
31.
Further, the Complainants note that the Victims petitioned the Constitutional Court
for the following declarations and orders: that the Victims are entitled to a fair and
impartial trial; their continued detention after the Constitutional Court in Petition
No. 18 of 2005 declared the concurrent trial in the High Court and Court Martial in
violation of their right to personal liberty; and lastly that, the General Court Martial,
in ignoring the decision of the Constitutional Court and the continued detention of
the 14 bailed petitioners, acts in an inconsistent manner with Article 128(3) of the
Constitution, and therefore is in contravention of the principle of the independence
of the Judiciary.
32.
The Complainants submit that the Victims have exhausted these local remedies, and
further submit that the national Courts resolved the issues in the applicants favour.
However the Complainants contend that the court orders have not been respected
by the Executive arm of Government, which has employed the police and military to
deny the Victims of their right to liberty, fair and impartial trial, and to frustrate the
various court orders.
33.
The Complainants submit that, in consecutive order, the following release and
declaratory orders have been pronounced; however submit that none has been
implemented:
(a)
(b)
(c)
(d)
2
Bail application No. 201 of 2005, pronounced on 16 November 2005;
Constitutional Court Petition No. 18 of 2005, pronounced on 31 January 2006;
Constitutional Court Petition No. 12 of 2006, pronounced on 12 January 2007;
Review of Bail application No. 20 of 2007.
Communication 147/95,149/96: Dawda K. Jawara v. The Gambia (2000) ACHPR para 30-31
5
34.
The Complainants contend that the Respondent State has been given numerous
opportunities to remedy the violations of the Charter, as required by the Commission
in Amnesty International and Others v. Sudan,3 and claim that the State has chosen to
ignore the decisions of the constitutional judicial authorities by implementing the
decisions of the Executive.
35.
The Complainants further contend that the Respondent State’s appeal against the
decision of the Constitutional Court over the declarations and orders affecting the
Victims and the other accused, does not affect the bail release orders since the State
has not complied with them. In support of this, the Complainants cite Assanidze v.
Georgia, a case from the European Court of Human Rights, which concerned the
detention of a person whose final release had been ordered by a competent court.
The Complainants aver that the European Court, in finding that domestic remedies
had been exhausted, noted that where a final release order was made, the principle
of legal certainty (one of the fundamental aspects of the rule of law) preclude any
attempt by a non-judicial authority to call that judgment into question, or to prevent
its execution.4
36.
The Complainants submit that in the instant case, the Executive working with other
institutions of the State, such as the military and the police, blatantly ignored the
pronouncements and orders of the Court, and even questioned the said
pronouncements.
37.
The Complainants conclude by noting that in spite of all the efforts of the Victims
and their counsel, the Respondent State has not obliged or respected the Court’s
release orders.
38.
For the above reasons, the Complainants submit that this Communication satisfies
the admissibility requirements of Article 56 of the Charter.
The Respondent State’s Submissions on Admissibility
39.
The Respondent State contends that the Communication is inadmissible under the
African Charter, submitting that the Communication was filed with the Commission
before the exhaustion of local remedies, and therefore offends the provisions of
Article 56(5).
40.
The Respondent State avers that promotion and upholding human rights is one of
the national objectives and directive principles of state policy, thus the Constitution
enjoins the State to guarantee and respect institutions charged with the responsibility
for protecting and promoting human rights. The Respondent State submits that one
3
Communication 48/90, 50/91, 52/91, 89/93: Amnesty International, Comité Loosli Bachelard, Lawyers' Committee
for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan (1999) ACHPR para
32
4
Assanidze v. Georgia (2004) ECHR (Application No.71503/01) para 131
6
of these institutions is the Uganda Human Rights Commission (hereafter UHRC),
established under Article 51 of the Constitution.
41.
The Respondent State submits that Article 52 mandates the UHRC to, inter alia,
investigate, at its own initiative or on a complaint made by any person or group of
persons against the violation of any human right. Further, under Article 53(1), the
Respondent State submits that the UHRC has the powers of a Court to issue
summons or other orders requiring attendance of any person before it, and if satisfied
that there has been an infringement of a human right or freedom, the UHRC is
empowered to order the release of a detained or restricted person, payment of
compensation, or any other legal remedy or redress.
42.
The Respondent State argues that the UHRC is the proper framework within which
the Complainants could and should have had their case properly addressed. In
addition, the Respondent State avers that the Constitution guarantees the UHRC’s
independence; specifically that the performance of its duties shall not be subject to
the direction of any person or authority. The Respondent State notes that in instances
where wayward agents were found guilty of violating a human right, the
Government of Uganda dutifully complied with the UHRC’s directives, including
the compensation of victims.
43.
The Respondent State notes that the Complainants have not utilised this forum for
addressing human rights grievances in Uganda. The Respondent State further notes
that, if the Victims are ultimately found innocent, they would be at liberty to seek
remedies and redress from the High Court, which are being sought in the present
Communication.
44.
The Respondent State concludes that the Government does not object to the decision
of the Court, and notes that the Victims were granted bail by the High Court, and
will be released when they meet the bail terms imposed by the Court. As such, the
Respondent State requests the Commission to decline to entertain the
Communication because it violates Article 56(5) of the Charter.
45.
Additionally, the Respondent State asserts that the matters raised in the present
Communication were considered and definitively ruled on by the East African Court
of Justice, in Reference No.1 of 2007 Between James Katabazi and 21 Others (Applicants)
vs. Secretary General of the East African Community (1st Respondent) and the Attorney
General of the Republic of Uganda (2nd Respondent) [hereafter the Katabazi case]. The
Respondent State notes that the case was filed on behalf of Mr. Katabazi and 21
others, including Mr. Patrick Okiring and Mr. Agupio Samson. The Respondent
State, therefore, submits that the matters raised in the Communication are res judicata,
and therefore cannot be heard and determined by the Commission again.
46.
For the above reasons, the Respondent State requests the Commission to declare the
Communication inadmissible.
7
The Complainant’s Supplementary Submissions on Admissibility
47.
Regarding the Katabazi case which was before the East African Court of Justice, the
Complainants aver that this Reference initially bore the names of all the 22 Peoples
Redemption Army (PRA) suspects; however for personal reasons both Mr. Samson
Agupio and Mr. Patrick Okiring withdrew instructions and their participation before
the East African Court, and opted to give their consent to the Complainants to bring
their complaint before the African Commission. The Complainants note that, as
testament and evidence of this fact, the consent and authorization forms of the
Victims were submitted to the Commission.
48.
Additionally, the Complainants contend that, notwithstanding the title naming all 22
suspects, the Court’s Judgment explicitly states that the reference was brought by
sixteen persons, of which Mr. Samson Agupio and Mr. Patrick Okiring were not
party. Accordingly, the Complainants submit that the arguments by the Respondent
State alleging that the Victims were parties to the Reference before the East African
Court of Justice were erroneous and misleading.
49.
The Complainants further aver that the Complaint before the Commission was in
relation to the actions of state actors which constitute violations of the African
Charter and the Constitutive Act of the African Union, which is different from the
reference brought before the East African Court of Justice, as this Court would not
have jurisdiction to hear complaints against violations of the Charter and
Constitutive Act by a Member State.
Oral Submissions
The Complainants’ Oral Submissions
50.
In oral submissions, the Complainants reiterated their written submissions, stating
that the Communication was submitted in accordance with the requirements of the
Charter: specifically the Complaint was submitted in a respectful manner and nonabusive language; the complaint related to violations of the Charter and the
Constitutive Act of the African Union. The Complainants averred that all available
local remedies had been exhausted, however the Respondent State had not heeded
the orders issued by the Constitutional and High Court in various decisions handed
down. The Complainants reiterated that the Communication was thus admissible
before the Commission.
The Respondent State’s Oral Submissions
51.
The Respondent State, in turn, reiterated its assertion on the exhaustion of local
remedies. It was observed that, under Article 23(6) of the Constitution, a person
arrested in respect of a criminal case is entitled to apply to court to be released on
bail. The Respondent State made reference to the UHRC, noting its powers and
functions, as established under Article 52 and 53 of the Constitution, and noting that
8
that there is a right of appeal from the UHRC to the High Court. The Respondent
State further noted while that the UHRC does not investigate any matter pending
before a court or judicial tribunal, and with regard to the order for compensation,
this remedy was not sought from the UHRC or High Court. The Respondent State
concluded that the Complainants had not exhausted the local remedies available to
them.
52.
Additionally, the Respondent State noted that the accused were charged before the
High Court, released on bail, and further charged before the General Court Martial,
which rendered the application for bail difficult to implement at the time, given that
the accused had been charged before another competent court for different offences.
The Respondent State noted that the condition for bail, not the right to bail under the
General Court Martial was still a subject of appeal before the Supreme Court, since
the Constitutional Court’s position was not clear, and concluded that the
Complainants had not exhausted local remedies given that the Supreme Court had
not pronounced itself in finality in the matter.
53.
The Respondent State also reiterated the assertion that the Complainants lodged a
petition before the East African Court of Justice, which was finally decided.
54.
In conclusion, the Respondent State averred that the Victims could still get remedies
locally.
The Commission’s Analysis on Admissibility
55.
Article 56 of the African Charter provides seven requirements, which must all be met
before a Communication can be declared Admissible by the Commission.
56.
From the submissions of the parties, the Admissibility of this Communication is
contested on two grounds; non-exhaustion of local remedies as stipulated in Article
56(5) of the African Charter, and on the grounds that the Communication deals with
a case which has been settled by the State involved, as stipulated in Article 56(7).
Given that the Respondent State has not contested sub-sections (1), (2), (3), (4) and
(6) of Article 56, and in the absence of any information to the contrary, the
Commission holds that the aforementioned sub-Articles of Article 56 of the Charter
have been met. The Commission will proceed to determine whether the requirements
under the contested sub-sections of Article 56 have been met.
57.
Article 56(5) of the African Charter states that Communications relating to human
and peoples’ rights shall be considered if they: “are sent after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly prolonged.” The
Complainants submit that they have exhausted all local domestic remedies, in
accordance with Article 56(5) but have not obtained relief. In support of this, the
Complainants referred to release and declaratory orders the Victims applied for,
which were pronounced in favour of the applicants. The Respondent State, on other
hand, contends that because the Victims did not apply to have their case addressed
9
by the UHRC, the Communication does not meet the requirement for the exhaustion
of local remedies, stated in Article 56(5) of the Charter.
58.
The Commission observes that through the local remedies rule, States are given the
possibility of redressing the alleged wrong within their own domestic legal systems
before their responsibility is brought to the international level.5 Additionally, it is a
generally accepted principle in international law that before an international body is
approached all available legal domestic remedies must be exhausted by the
applicant. As stated in the Commission’s Information sheet No. 3, “he or she must
have taken the case to the highest court of the land.”6
59.
The Commission notes that in the present case, the Victims filed a petition in the
Court of Appeal, sitting as the Constitution Court; that is Constitutional Petition No.
12 of 2006. In its ruling, the Court held that the continuation of the High Court trial
while the 14 bailed petitioners were in unlawful custody contravened the
Constitution, and their continued detention in contravention of the Constitutional
Court’s declaration was unlawful. As redress, the Court held that “[T]he 14 bailed
petitioners are to be released forthwith, under the terms of their bail granted by the
High Court, unless they are being held on some other lawful ground.”7
60.
The Commission notes that in the present communication, the Victims obtained the
remedies they sought from the Court of Appeal, which was sitting as the
Constitutional Court, therefore they did not appeal to the Supreme Court for redress.
The Commission further notes that while the Supreme Court is the highest appellate
Court in Uganda, the jurisdiction of the Supreme Court is limited to appeals on
decisions of the Court of Appeal where “the party is aggrieved by the decision of the
Court of Appeal.”8 As such, the Victims fulfilled the requirement by exhausting the
legal domestic remedies available to them, irrespective of the fact that they did not
take their case to the highest court of the land.
61.
Regarding the Respondent State’s assertion that the Victims did not exhaust all
available local remedies because they did not seek to have their case addressed by
the UHRC, the Commission notes from its jurisprudence that it has previously held
that human rights commissions do not fall under the category of judicial remedies
which should be sought by the Victims. This can be seen in Alfred Cudjoe v. Ghana,
and reaffirmed in Kenneth Good v. Botswana, where the Commission held that:
“the internal remedy to which Article 56(5) refers entails remedy sought from courts of a judicial
nature, which the Ghanaian Human Rights Commission is clearly not. From the African
Commission’s point of view, seizing the said Commission can [be] taken as preliminary amicable
Silvia D’Ascoli & Katherine Maria Scherr, The Rule of Prior Exhaustion of Local Remedies in the International
Law Doctrine and its Application in the Specific Context of Human Rights Protection, (2007) 15
6
The African Commission on Human and Peoples' Rights Information Sheet No. 3
7
Col (Rtd.) Kizza Besigye and 22 Others vs. The Attorney General - Constitutional Petition No. 12 of 2006 – 12
January 2007, p.31
8
Article 132(1) and (2), Constitution of the Republic of Uganda (1995)
5
10
settlement and should, in principle, considering the employer’s failure to react, be followed by an
action before the law courts.”9
Therefore local remedies that are essentially non-judicial or discretionary are not the
kind envisaged by the rule.10
62.
However, the Commission notes that, unlike the Ghanaian Human Rights
Commission referred to in Cudjoe v. Ghana, the UHRC has the powers of a Court to
issue summons or other orders requiring attendance of any person before it, and if
satisfied that there has been an infringement of a human right or freedom, the UHRC
is empowered to order the release of a detained or restricted person, payment of
compensation or any other legal remedy or redress.11
63.
Whereas to date the Commission has not deliberated on whether a quasi-judicial
remedy is to be regarded as a remedy for the purposes of the rule under Article 56(5)
of the Charter, as is the case of the UHRC which is a human rights commission vested
with judicial powers comparable with those of traditional courts, the Commission
finds that in the present case where the Victims have exhausted the available legal
remedies to the highest level and obtained redress, it would be unreasonable to hold
that all available legal remedies were not exhausted because the Victims did not seek
to have their case heard by the UHRC.
64.
Accordingly, the Commission finds that the Victims exhausted all domestic legal
remedies, and as such holds that the requirement of Article 56(5) has been met.
65.
Article 56(7) of the African Charter states that Communications relating to human
and peoples’ rights shall be considered if they: “do not deal with cases which have
been settled by the states involved in accordance with the principles of the Charter
of the United Nations, or the Charter of the Organization of African Unity or the
provisions of the present Charter.” In essence, Article 56(7) bars the Commission
from entertaining cases that have been settled by another international settlement
procedure.12 This provision embodies the principle of res judicata to the extent that it
excludes a matter which has been settled by the state involved.13
66.
The Commission has, in its jurisprudence, adopted the following definition; “Res
judicata is the principle that a final judgement of a competent court/tribunal is
conclusive upon the parties in any subsequent litigation involving the same cause of
9
Communication 221/98: Alfred B. Cudjoe v. Ghana (1999) ACHPR para 14. See also Communication 313/05Kenneth Good v Republic of Botswana (2010) ACHPR para 88
10
Henry Onoria, The African Commission on Human and Peoples’ Rights and the exhaustion of local remedies under
the African Charter (2013) 3 African Human Rights Law Journal 19
11
Article 52 and 53, Constitution of the Republic of Uganda
12
Communication 266/03: Kevin Mgwanga Gunme et al v Cameroon (2009) ACHPR para 84
13
Lucyline Nkatha Murungi, Jacqui Gallinetti, The Role of Sub-Regional Courts in the African Human Rights
System (2010) 7 International Journal on Human Rights 126
11
action.”14 The Commission further expounded on this by noting that the principle
behind the requirement under this provision of the African Charter is to desist from
faulting member states twice for the same alleged violations of human rights.15
67.
In the present Communication, the Respondent State avers that by virtue of the fact
that the matters raised in the Communication were definitively ruled on by the East
African Court of Justice in the Katabazi case, the issues raised in the Communication
are res judicata. The Complainants, on the other hand, contend that the Victims
withdrew instructions and their participation before the East African Court.
68.
In determining whether the present Communication meets the requirement of
Article 56(7), the Commission is guided by its jurisprudence in Kevin Mgwanga
Gunme et al v. Cameroon, in which it held that “the African Commission states that for
a matter to fall within the scope of Article 56(7) of the African Charter it should have
involved the same parties, the same issues raised by the complaint before the African
Commission, and must have been settled by an international or regional
mechanism.”16 Further, in Sudan Human Rights Organisation & Centre on Housing
Rights and Evictions v. Sudan, the Commission held that “the mechanisms envisaged
under Article 56(7) of the Charter must be capable of granting declaratory or
compensatory relief to victims, not mere political resolutions and declarations.”17
69.
The initial issue to be determined by the Commission is whether the East African
Court of Justice (hereafter the East African Court) is one of the mechanisms envisaged
under Article 56(7) of the Charter. To this end, the Commission notes that the East
African Court, one of the organs of the East African Community established under
Article 9 of the Treaty for the Establishment of the East African Community,18 is “[…]
a judicial body which shall ensure the adherence to law in the interpretation and
application of and compliance with this Treaty.”19 Further, the Commission notes
that, following consideration of a reference,20 the Court shall deliver a reasoned
judgment in public session,21 and that “execution of a judgment of the Court which
imposes a pecuniary obligation on a person shall be governed by the rules of civil
procedure in force in the Partner State in which execution is to take place,” 22 which
indicates that the East African Court is capable of granting both declaratory and
compensatory relief to victims. From the above, the Commission is of the view that
14
Communication No. 260/02: Bakweri Land Claims Committee v. Cameroon (2004) ACHPR para 52. See also,
August Reinisch, The Use And Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting
Dispute Settlement Outcomes, The Law and Practice of International Courts and Tribunals, 2004, 50- 51.
15
Id, para 52
16
Communication 266/03: para 86
17
Communication 279/03, 296/05: Sudan Human Rights Organization & Centre on Housing Rights and Evictions
(COHRE) v. Sudan (2009) ACHPR para 105
18
http://www.eacj.org/establishment.php
19
Article 23, Treaty for the Establishment of the East African Community
20
“A reference by a Partner State, the Secretary General or any person under Articles 28, 29, 30 respectively of the
Treaty shall be instituted by presenting to the Court an application;” Rule 24, The East African Court of Justice Rules
of Procedure, 2010
21
Article 35, Treaty for the Establishment of the East African Community
22
Article 44, Treaty for the Establishment of the East African Community
12
the East African Court, a regional judicial mechanism which is capable of granting
declaratory or compensatory relief, is one of the mechanisms envisaged under Article
56(7) of the Charter.
70.
The Commission also notes that the Judgment of the Katabazi case was delivered on
01 November 2007, essentially rendering the matter settled.
71.
Having established that the Katabazi case has been settled by a regional mechanism
which falls within the scope of Article 56(7), the Commission will proceed to
determine whether the present Communication involves the same parties and the
same issues as the case before East African Court.
72.
Regarding the question of whether the same parties were before the East African
Court and the African Commission, the Commission notes that the case before the
East African Court was brought against the Republic of Uganda by twenty two (22)
applicants, only one of whom is named; that is James Katabazi. However, in the letter
dated 13 August 2012, the Complainants conceded that the Victims were indeed
party to this case before the East African Court of Justice.
73.
The Commission further notes that while the Complainants have asserted that the
Victims “withdrew instructions and their participation before the East African Court
and opted to give their consent to Human Rights Network (HURINET) and ISISWICCE to bring their complaint before the African Commission,”23 the
Complainants have not adduced evidence to support the assertion that the Victims
withdrew from the Katabazi case. The Commission further notes that the Respondent
State averred that the Victims were applicants in the Katabazi case, 24 however did
not adduce any additional evidence in support of this claim.
74.
In light of the dearth of evidence to support or rebut this claim, the Commission
requested confirmation from the Registrar of the East African Court that the Victims
withdrew from the Katabazi case before the judgment was delivered. To this end, the
Commission has established that “Mr. Patrick Okiring and Mr. Samson Agupio who
were the 19th and 21st Applicants in the Reference, discontinued their reference
against all the Respondents by a notice lodged in this Court on 11th July 2007.”25 As a
result, the Commission is of the view that the matter has not been settled with respect
to the Victims, because they were not party to the suit when the judgment was
rendered by the East African Court on 01 November 2007.
75.
In light of the above, the Commission finds that the requirement of Article 56(7) has
been met.
76.
Accordingly, the Commission declares this Communication admissible.
23
Letter from the Complainants, Reference: HUR/95/10, 13 August 2012
Note Verbale from the Ministry of Foreign Affairs of the Republic of Uganda, Reference: AOG70/153/01, 01
October 2012
25
Letter from the East African Court, Reference: EACJ/C-4/VOL.1/23/13, 13 February 2013
24
13
Consideration on the Merits
The Complainants’ Submissions on Merits
Alleged violation of Article 5
77.
In the merits submission, the Complainants claim a violation of Article 5 of the
Charter. The Complainants submit that while in detention at the Luzira Government
Prison and other government security detentions, the Victims were beaten, taunted
and flogged in a bid to induce them to confess the crimes for which they were
arrested. The Complainants aver that those acts were done by the Respondent State’s
servants in the course of their employment.
78.
The Complainants further submit that the state has done nothing to apprehend the
perpetrators of the violence.
Alleged violation of Article 6
79.
The Complainants aver a violation of Article 6 of the Charter. The Complainants
submit that although the victims were granted bail by the High Court on 16
November 2005, they were kept in detention and charged before the General Court
Martial. The situation continued in disregard of the Constitutional Court declaration
in petition No.18 of 2005 that the continued detention of the victims and others
contravened the right to personal liberty and the principle of independence of the
judiciary.
80.
The Complainants submit that the acts of the servants or agents of the Respondent
State through the continued detention of the Victims, denied the Victims their right
to personal liberty and violated the provisions of Article 6 of the Charter.
81.
The Complainants aver that the actions of the Respondent State in which its servants
or agents disregarded the orders of the Constitutional Court directing the release of
the Victims militate against the judiciary and the spirit and provisions of Article 6 of
the Charter.
Alleged violation of Article 7
82.
The Complainants submit that the actions of the armed men at the premises of the
High Court violated the principle of judicial independence and is therefore a
violation of the right to a fair trial as provided in Article 7 of the Charter.
83.
The Complainants aver that the storming of armed men and security agents at the
High Court and their interference with the activities of the Court interfered with the
independence of the judiciary in so far as their actions were calculated to instil fear
in the judge and other judicial officers. In support of their claim, the Complainants
14
point out to the withdrawal of the trial judge. The Complainants submit that these
actions contravene the right of an accused person to be afforded a fair and impartial
trial.
84.
The Complainants submit that the Victims have been denied access to theirs lawyers
on several occasions and that their lawyers were violently beaten while at the High
Court.
85.
The Complainants submit that the trial of the Victims before both the High Court of
Uganda and the General Court Martial on different charges but based on the same
facts contravenes Article 7 of the Charter. The Complainants refer to articles 28(1)
and 44(c) of the Ugandan Constitution.
86.
In the same manner, the Complainants further aver that the Court Martial had no
jurisdiction over the offences of terrorism and the unlawful possession of fire-arms
and that the trial of the Victims under such charges before the Court Martial violates
the right to a fair trial.
The Respondent State’s Submission on the Merits
Alleged violation of Article 5
87.
In its submission, the Respondent State argues that it cannot be found to have
violated Article 5 as the Complainants have failed to adduce medical evidence or any
other evidence to prove the allegation of torture.
Alleged violation of Article 6
88.
In refuting the argument of the violation of Article 6, the Respondent State submits
that the right to personal liberty is not absolute and may be derogated from.
89.
The Respondent State alleges that the Victims were arrested and taken to court to
answer the amended charges preferred against them.
90.
The Respondent State argues that its actions are within the confine of the domestic
law. The Respondent State submits that arresting an individual suspect for an offence
provided for under the law does not violate the Charter.
91.
The Respondent State alleges that the arrest of the Victims were linked to the
subversive activities that the Victims were involved in. The State argues that its
actions are in line with its duty to ensure that its independence, sovereignty and
territorial integrity are not compromised by the Victims.
Alleged violation of Article 7
15
92.
The Respondent State submits that the siege of the High Court did not affect the
independence of the judiciary. In support of this claim, the Respondent State points
out to the grant of bail to the Victims and the declarations made by the Constitutional
Court in Constitutional Petitions No. 18 of 2005 and No.12 of 2006. The Respondent
State submits that the declarations by the Constitutional Court in those two cases in
favour of the Victims show how independent the judiciary is.
93.
The Respondent State avers that security was deployed at the High Court following
intelligence information that the Victims were to be rescued to escape the course of
justice and join an armed rebellion. The Respondent State therefore submits that its
actions were necessitated by security reasons.
94.
The Respondent State submits that trials by military courts do not per se constitute a
violation of the right to be tried by a competent organ. In support of this allegation,
the Respondent State refers the decision of the Commission in Civil Liberties
Organisation v Nigeria: The military tribunals are not negated by the mere fact of being
presided over by military officers. The critical factor is whether the process is fair,
just and impartial. The Respondent submits that the trial of the complainants in the
military courts is not a violation of the right to a fair trial since this is provided for in
the Ugandan law.
The Commission’s Analysis on the Merits
(i)
Violation of Article 5
95.
The Complainants aver that the Victims were beaten, taunted and flogged to induce
confession in violation of Article 5 of the Charter. This averment is contested by the
Respondent State which avers that the Complainants have not produce any evidence
of torture, including medical evidence.
96.
Article 5 of the Charter provides that: “Every individual shall have the right to the
respect of the dignity inherent in a human being and to the recognition of his legal
status. All forms of exploitation and degradation of man, particularly slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.”
97.
The Respondent State points out to the lack of evidence by the Complainants to prove
the allegation of torture. The Commission notes that specific rules govern the burden
of proof in torture cases. When a person is injured in detention or while under the
control of security forces, there is a strong presumption that the person was subjected
to torture or ill-treatment. The burden then shifts to the Respondent State to convince
the Commission that the allegations of torture raised by the Complainants are
unfounded.26
26
Communication 334/06: Egyptian Initiative for Personal Rights and Interrights v. Egypt (2011) para 168-169
16
98.
Furthermore, the State is obliged to investigate allegations of torture, independently
of the origin of the complaint. The formal lodging of a complaint of torture or an
express statement of intent to sue is not necessary and it is enough for the Victim to
bring the facts related to the allegation of torture to the attention of the authorities.27
99.
In the present case, the Complainants do not allege that the Victims have sustained
injuries as a result of the alleged beatings and floggings. The Complainants neither
allege nor does the evidence reveal that allegations of torture were in fact brought to
the attention of the State. The Commission has perused the evidence before it and
has not found any evidence that such allegations were made before either the
domestic courts or any other body.
100. In Ouko v. Kenya, the Commission held that “although the Complainant has claimed
a violation of his right to freedom from torture, he has not substantiated this claim.
In the absence of such information, the Commission cannot find a violation as
alleged.”28 In Aminu v. Nigeria, on allegations of torture and inhuman treatment on
several occasions by the Nigerian security operatives, the Commission held that “In
the absence of specific information on the nature of the acts complained of, the
Commission is unable to find a violation as alleged.”29
101. The Commission notes that there is no allegation that injuries occurred while in
detention. The facts do not reveal a failure by the Respondent State to undertake an
effective investigation into allegations of ill-treatment. In light of the absence of
information substantiating the allegations, the Commission declines to find a
violation of Article 5 of the Charter.
(ii)
Violation of Article 6
102. The issue before the Commission is whether the continued detention of the Victims
in defiance of the bail order issued by the High Court on 16 November 2005 and of
the declarations of unconstitutionality issued by the Constitutional Court in
Constitutional Petitions No.15 of 2005 and No.18 of 2005, contravene the right to
personal liberty enshrined at Article 6 of the Charter. Article 6 of the Charter states:
“Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained.”
103. The Commission notes the fundamental importance of the guarantees under Article
6 for securing the personal liberty of every individual and the protection from
arbitrary arrests and detention. For this reason, the Commission in its jurisprudence
has highlighted the need for any deprivation of liberty to conform strictly to the
limitations under Article 6. In Gunme v Cameroon, the Commission stated that “a state
27
Communication No. 187/2001: Dhaou Belgacem Thabti v. Tunisia (14 November 2003) Committee against Torture
CAT/C/31/D/187/2001; http://www.bayefsky.com/html/tunisia_t5_cat_187_2001.php
28
Communication 232/99: John D. Ouko v. Kenya (2000) ACHPR, para 26
29
Communication 205/97: Kazeem Aminu v. Nigeria (2000) ACHPR para 16.
17
party cannot justify violations of the African Charter by relying on the limitation
under article 6 of the Charter. The respondent state is required to convince the
Commission that the measures or conditions it had put in place were in compliance
with article 6 of the Charter.”30 In Amnesty International and Others v. Sudan, the
Commission stated “Article 6 must be interpreted in such a way as to permit arrests
and detention only in the exercise of powers normally granted to the security forces
in a democratic society.”31 Competent authorities should not enact provisions which
limit the exercise of rights and freedoms.
104. The most appropriate manner to ensure the respect of Article 6 is to allow for a
judicial review of any arrest and detention by independent and impartial courts.
Principle 35 of the Guidelines on the Conditions of Arrest, Police Custody and PreTrial detention in Africa, adopted by the Commission during its 55th Ordinary
Session in Luanda, Angola, from 28 April to 12 May 2014, provides that:
“All persons in police custody and pre-trial detention shall have the right, either personally
or through their representative, to take proceedings before a judicial authority, without delay,
in order to have the legality of their detention reviewed.”
105. Such a right would be ineffective if the decision of the judicial authority was not
binding on the executive, and for this reason, Principle 35 of the Guidelines further
states: “If the judicial authority decides that the detention is unlawful, individuals have the
right to release without delay.”
106. The Commission would also like to recall Principle 4(a) of the Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted by
the Commission at the 33rd Ordinary Session, held in Niamey, Niger, from 15 to 29
May 2003: 32 “The independence of judicial bodies and judicial officers shall be guaranteed by
the constitution and laws of the country and respected by the government, its agencies and
authorities.” The Executive and the Legislature must respect and abide by the
judgements and decisions of the Judiciary, even when they do not agree with them.
“Such respect for the judicial authority is indispensable for the maintenance of the rule of law,
including respect for human rights standards, and all branches of Government and all State
institutions have a duty to prevent any erosion of this independent decision-making authority
of the Judiciary.”33
107. The Commission agrees with the Respondent State that the right to personal liberty
does not grant complete freedom from arrest or detention. Deprivation of liberty is a
legitimate form of state control over persons within its jurisdiction. Instead, the right
to personal liberty acts as a substantive guarantee that any arrest or detention will
not be unlawful or arbitrary. In Rafael Marques de Morais (represented by the Open
30
Communication 266/03: Gunme v Cameroon (2009) ACHPR para 118
Supra note 3, para 59
32
http://www.achpr.org/files/activity-reports/17/achpr34and35_actrep17_20032004_eng.pdf
33
Office of the High Commissioner for Human Rights & International Bar Association, Human Rights in the
Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (2003) 121
31
18
Society Institute and Interights) v. Angola, the Human Rights Committee defined
arbitrariness in the context of arrest and detention as more than an action that goes
against the law. The Human Rights Committee noted that arbitrariness also includes
“elements of inappropriateness, injustice, lack of predictability and due process of
law.”34
108. The Respondent State argues that its actions were permissible under Article 6 of the
Charter as the purpose of the arrest of the Victims was to bring them before a court
of law to answer an offence provided by law. The Commission has consistently held
in its jurisprudence that the clause ‘laid down by law’ does not provide a blanket
approval of any domestic law regardless of its effect. If so, States Parties to the
Charter would be able to negate the rights conferred upon individuals by the
Charter. The clause constitutes a reference to international law, meaning that only
restrictions on rights which are consistent with the Charter and with States Parties’
international obligations should be enacted by the relevant national authorities.35
109. The Respondent State further argues that the arrest was in line with the duty of the
State to ensure it independence, sovereignty and territorial integrity. While accepting
that the State has a right and duty to guarantee its security, the Commission must
emphasise that the State remains subject to the provisions of the Charter. The
exigencies of fighting terrorism cannot invalidate the protection afforded under
Article 6.36 In the present case, the risk posed by the Victims to society and the risk
of flight must have been taken into consideration by the High Court before the issue
of the Bail Order, it is not for the Executive of the Respondent State to usurp the role
of the Court.
110. Where a suspect is released on bail contrary to the wishes of the State, the State
should not be allowed to deny bail and detain the individual by again arresting the
suspect and bringing the latter under different charges before a different court. To
allow the State to do so defeats the powers of the Court to grant bail and removes
any judicial oversight over arrests and detentions. It is inappropriate, blatantly unjust
and removes any element of predictability. A detainee having recourse to the Courts
has a legitimate expectation that the order of the Court will be abided to by the State.
111. For these reasons, the Commission finds that the subsequent arrest and detention of
the Victims after they had been granted bail was arbitrary and unlawful and
therefore outside the permissible limitations to the right to personal liberty. The
Commission finds the Respondent State in violation of Article 6 of the Charter.
(iii) Violation of Article 7
34
Communication 1128/2002: Rafael Marques de Morais (represented by the Open Society Institute and Interights) v
Angola (2005) Human Rights Council, para 6.1
35
Communication 275/03 : Article 19 v Eritrea (2007) ACHPR paras 91,92.
36
African Commission on Human and Peoples’ Rights, Principles and Guidelines on Human and Peoples’ Rights
while Countering Terrorism in Africa, Part 1(I), adopted during the 56th Ordinary Session in Banjul, The Gambia,
from 21 April to 7 May 2015
19
Article 7(1)
112. The Complainants aver a violation of the right to a fair trial protected under Article
7 of the Charter through various actions of the Respondent State. Article 7(1) of the
Charter states:
Every individual shall have the right to have his cause heard. This comprises:
a) the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulations and
customs in force;
b) the right to be presumed innocent until proved guilty by a competent court or tribunal;
c) the right to defence, including the right to be defended by counsel of his choice;
d) the right to be tried within a reasonable time by an impartial court or tribunal.
113. The Complainants aver that the presence and actions of the armed men within the
premises of the High Court were calculated to instil fear and are in violation of the
right of an accused person to be accorded a fair and impartial trial.
114. The Commission notes that the impartiality and independence of the Judiciary
concern not only those standing before the Courts, but affect the broader issues of
separation of powers, democracy and the rule of law.
115. Taking this into consideration, the Commission has at various times reiterated the
need by States to respect the independence and impartiality of the Courts. Principle
4(f) of the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa states: “There shall not be any inappropriate or unwarranted
interference with the judicial process nor shall decisions by judicial bodies be subject to
revision except through judicial review, or the mitigation or commutation of sentence by
competent authorities, in accordance with the law.” Principle 5 of the same Principles
further states that “Judicial officers shall decide matters before them without any
restrictions, improper influence, inducements, pressure, threats or interference, direct or
indirect, from any quarter or for any reason.” In its Resolution on the Respect and the
Strengthening of the Independence of the Judiciary, the Commission called
upon African countries to “refrain from taking any action which may threaten
directly or indirectly the independence and the security of judges and magistrates.”37
116. The Respondent State argues that the presence of the Security Agencies was
necessitated by information that upon their release on bail, the Victims were to
escape the course of justice and join an armed rebellion. The Respondent State is no
doubt aware that on an application for bail, the correct approach is to adduce such
evidence before the Court to ensure an informed determination as opposed to
cordoning off the Court prior to the start of the proceedings.
37
ACHPR/Res.21 (XXI) 96: Resolution on the Respect and the Strengthening of the Independence of the Judiciary
20
117. The Respondent State further avers that the grant of bail by the High Court to the
Victims is proof that the siege did not affect the independence of the judiciary. The
fact that the Judiciary refused to be intimidated cannot be used as a defence by the
State. What is of concern here to the Commission is the intention of the Respondent
State through the deployment of security forces, as opposed to the result achieved by
such actions.
118. The Commission notes the information contained in Constitutional Petition No.18 of
2005 referred to in the Complainants’ submission that the security forces entered the
criminal registry and cells and interrupted the processing of the bail order of the
Victims. The Commission further notes that the head of the Judiciary was not
consulted prior to the deployment. While the State has the duty and right to ensure
national security, the current circumstances do not point to a bona fide security
concern.
119. The Commission finds that the actions of the security forces are not reflective of their
avowed aim of protecting national security, but rather the aim was to ensure the
continued detention of the Victims through the intimidation of the judiciary. The
manner in which the security forces behaved constituted a threat to the
independence of the Judiciary and was calculated to induce fear in the judicial
personnel, by reminding them of the reach and might of the State.
120. The Commission notes that under the principle of separation of powers, the
assessment of the security situation in the Courtroom falls under the responsibility
of the presiding Judge. Accordingly, if there were security concerns on the possibility
of the Victims escaping from the Courtroom, the presiding Judge would be the one
to request additional security, or at the very least should have been consulted before
the deployment of the security forces. In the absence of this, the actions of the security
forces amount to intimidation of the Judiciary.
121. For these reasons, the Commission finds that the deployment of the armed men in
the premises of the Court aimed at interfering with the independence and
impartiality of the Court, thereby violating the right of the Victims’ to a fair trial
under Article 7(1) of the Charter.
Article 7(1)(b) and (d)
122. The Complainants further submit that charging the Victims with two different set of
offences before both the High Court and the General Court Martial on the same sets
of facts contravenes the right to a fair trial and to a fair hearing. The Complainants
refer to Articles 28(1) and 44(c) of the Ugandan Constitution. Article 28(1) of the
Ugandan Constitution states: “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.” Article
44(c) of the Ugandan Constitution states: “Notwithstanding anything in this
Constitution, there shall be no derogation from the enjoyment of the following rights
21
and freedoms - the right to fair hearing.” This argument is rejected by the Respondent
State who submits that trials by military courts do not per se constitute a violation of
the right to be tried by a competent organ. To support this affirmation, the
Respondent State refers to Civil Liberties Organisation and Others v. Nigeria where the
Commission held that that a military tribunal per se is not offensive to the rights in
the Charter, nor does it imply an unfair or unjust process.38 The Respondent State
further contends that the trial of the Complainants by the military courts is not in
violation of their right to fair trial, as it is provided for under Ugandan law.
123. The question before the Commission is thus whether the trial of the Victims before
the military courts was in violation of the fair trial rights under Article 7(1)(b) of the
Charter?
124. The Commission first finds it necessary to distinguish the Communication referred
to by the Respondent State, Civil Liberties Organisation and Others v. Nigeria,39 with the
present one. In this Communication the civilian was part of a common conspiracy
together with members of the military to overthrow the Nigerian Military
Government. Five of those brought before the military court were part of the military,
with only one civilian. The Commission found it was reasonable that he be charged
with his military co-accused in the same judicial process.40 It is important to note the
circumstances present in this particular Communication. The Commission was here
dealing with events occurring under a military regime where the authority of the
executive and the legislature had been subsumed under military rule. The
Commission was, in other words, limited by the circumstances in the state. What the
Commission attempted to achieve is the durability and application of the norms
prescribed by the Charter, even under a military system.41 The situation in this case
recalls the affirmation of the Human Rights Committee that military tribunals may
only try civilians in extraordinary, objectively determined and narrowly defined
circumstances such as cases where fair, independent and impartial civilian courts are
unavailable.42
125. The current case has stronger similarities to Marcel Wetsh’okonda Koso and Others v
Democratic Republic of Congo and Law Office of Ghazi Suleiman v. Sudan, where the
Commission found that the fact that civilians and soldiers accused of a civilian
offence in this instance the theft of drums of diesel were tried by a military court
presided over by military officers was a flagrant violation of the above-mentioned
requirements of good justice.43 In Law Office of Ghazi Suleiman v. Sudan, the
38
Communication 218/98: Civil Liberties Organisation, Legal Defence Centre and Assistance Project v Nigeria
(2001) ACHPR para 44
39
Ibid
40
Id, para 25
41
Id, para 26
42
General Comment 13: “Article 14 (Administration of Justice) Equality before the Courts and the Right to a Fair and
Public Hearing by an Independent Court Established by Law,” Human Rights Committee (1984) para 4
43
Communication 281/2003: Marcel Wetsh’okonda Koso and Others v Democratic Republic of Congo (2008)
ACHPR para 86
22
Commission recalled the general stand of the African Commission on the question
of civilians being tried by military courts:
“In its Resolution on the right to a fair trial and legal aid in Africa, during the adoption of
the Dakar Declaration and Recommendations, the African Commission noted that: ‘In many
African countries, military courts or specialised criminal courts exist side by side with
ordinary courts to hear and determine offences of a purely military nature committed by
military staff. In carrying out this responsibility, military courts should respect the norms of
a fair trial. They should in no case try civilians. Likewise, military courts should not deal with
offences which are under the purview of ordinary courts.’44
126. The Commission would also like to recall Principle G(c) of the Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa: “Military courts
should not in any circumstances whatsoever have jurisdiction over civilians.” Civilians
having neither military duties nor functions cannot be tried before military courts.
The trial of civilians by a military tribunal violates due process and fair trial rights,
in particular the individual’s right to a hearing by a competent, independent and
impartial tribunal.45
127. The Respondent State further argues that such trial is not in violation of Article 7 of
the Charter, as it is provided for in Ugandan law. The Commission would like to
recall its arguments made in relation to Article 6 in this Communication: the mere
fact that a law has been voted by the competent organ in the State does not provide
a blanket approval of the law regardless of its effect. Domestic laws must be
consistent with the Charter and with States Parties’ international obligations.46
128. In the current case, both Victims are civilians in a State where the remedy of civilian
courts are available. Among the twenty (20) others arrested with the Victims, all were
civilians, bar one retired Colonel who should therefore be considered as a civilian
and a Captain. The Commission therefore fails to see any compelling reason for their
trial before the General Court Martial.
129. The Commission finds that the trial of the Victims before the General Court Martial
infringed their right to be heard by a competent, independent and impartial court
under Article 7(1)(b) and (d).
Article 7(1)(c)
130. The Complainants further aver that the General Court Martial lacked the required
jurisdiction to try the Victims for the offence of terrorism and the unlawful
possession of firearms. The Commission finds that the lack of ratione personae
jurisdiction noted above with regards to the trial of the Victims is a fatal mistake to
the prosecution of the case before the General Court Martial. It is immaterial whether
44
Communication 222/98, 229/99: Law Office of Ghazi Suleiman v. Sudan (2003) ACHPR para 65
Cantoral Benavides v. Peru (2000) IACtHR (Series C No. 69), para. 112
46
Communication 275/03: Article 19 v Eritrea (2007) ACHPR paras 91,92.
45
23
the charges could have validly been brought before the General Court Martial with
respect to military staff, the General Court Martial is incompetent to try the Victims,
independently of the charges.
131. The Complainants further aver that the Victims were on several occasions denied
access to their lawyers to prepare their defence. The African Commission in several
previous decisions has set out the principle that where allegations of human rights
violations go uncontested by the Government concerned, the Commission must
decide on the facts provided by the Complainant and treat those facts as given.47
132. Legal representation is regarded as the best means of legal defence against
infringements of human rights and fundamental freedoms. This is recognised in
various instruments adopted by the Commission. Principle N(1) of the Principles
and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa provides
that ,“The accused has the right to communicate with counsel.” Principle 14(c) of the
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in
Africa provides that: “Pre-trial detainees shall have regular and confidential access
to lawyers or other legal service providers.”
133. The denial of access to counsel by the Respondent State is a serious violation of the
right to defence, opening the door to procedural irregularities and prejudicing the
defence of the Victims. The Commission holds that there has been a violation of
Article 7(1)(c) of the Charter, the right to be defended by counsel.
134. The Complainants further aver that the lawyers of the Victims were violently beaten
while at the High Court and this fact being undisputed is accepted as true by the
Commission. The Commission notes that States have the obligation to ensure that
lawyers are able to carry out their profession freely, independently and without fear
of bodily or mental harm.48 Where lawyers are intimidated, this has a chilling effect
on their ability to defend their clients. This in turn violates the right to defence of the
Victim. In view of the foregoing, the Commission finds a violation of the right to
defence under Article 7(1)(c) of the Charter.
135. More than a violation of the right to defence, the Commission finds that the beating
of a lawyer in court while he is undertaking professional duties, is a severe threat to
the rule of law. It is now widely accepted that for the rule of law to flourish, judicial
independence is necessary. Not only must judges be allowed to decide cases without
interference, every judicial actor should be allowed to freely fulfil his role. An
independent lawyer allows an impartial judge to reach a reasoned and fair decision
in view of the law and facts. The physical assault of a lawyer in the premises of the
court is an impermissible attack on the independence of the judiciary and the rule of
law in the State.
47
Communication No. 206/97: Centre For Free Speech v. Nigeria, (1999) ACHPR, para 17. See also,
Communications Nos. 59/91, 60/91, 64/91, 87/93 and 101/93
48
Principle I(b) of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
24
(iv) Violation of Article 26
136. The Complainants mention in their Merits Submission a violation of Article 26 of the
Charter, in conjunction with Article 7. Article 26 of the Charter states: “States Parties
to the present Charter shall have the duty to guarantee the independence of the Courts.”
Article 26 of the Charter provides for the independence and impartiality of courts
necessary to give effect to Article 7 of the Charter.
137. In Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development
in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe, the Commission held as
follows:
“It is impossible to ensure the rule of law, upon which human rights depend, without
guaranteeing that Courts and tribunals resolve disputes both of a criminal and civil character
free of any form of pressure or interference. The alternative to the rule of law is the rule of
power, which is typically arbitrary, self-interested and subject to influences which may have
nothing to do with the applicable law or the factual merits of the dispute. (…) It is a vital
requirement in a State governed by law that court decisions be respected by the State, as well
as individuals. The Courts need the trust of the people in order to maintain their authority
and legitimacy. The credibility of the Courts must not be weakened by the perception that
courts can be influenced by any external pressure.”49
138. By refusing to comply with the Bail Order and the Constitutional Declarations issued
by the Courts and by invading the High Court to prevent the release of the Victims,
the Respondent State undermined the independence of the Courts. This is a violation
of Article 26 of the African Charter.
139. In view of the above, the Commission:
i.
Does not find violation of Article 5 of the African Charter;
ii.
Finds violations of Article 6, Article 7(1)(b), (c), (d) and Article 26 of the Charter;
iii.
Hereby orders the Government of Uganda to pay adequate compensation to
the Victims for the violations of Article 6, Article 7(1)(b), (c), (d) and Article 26
of the Charter. In assessing the manner and mode of payment of compensation,
the Government of Uganda shall be guided by international norms and
practices relating to payment of compensatory damages. The Commission
avails its good offices to facilitate the implementation of this ruling;
iv.
Further directs to the Government of Uganda to determine the whereabouts of
Mr. Samson Agupio, confirm that Mr. Agupio was released from detention
49
Communication 294/04: Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development
in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe (2009) ACHPR para 118-119.
25
following the nolle prosequi entered by the Director of Prosecutions and inform
the Commission accordingly;
v.
Directs the Government of Uganda to ensure that the provisions of the Uganda
Peoples’ Defence Forces Act No. 7 of 2005, through which the Victims who are
civilians were charged in the General Court Martial, is revised to prohibit the
trial of civilians before military courts;
vi.
Calls on the Government of Uganda to train its military personnel and law
enforcement officials on human rights principles, including the African
Charter, the Guidelines on the Conditions of Arrest, Police Custody and PreTrial detention in Africa, the Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa, the Principles and Guidelines on Human
and Peoples’ Rights while Countering Terrorism in Africa, among others;
vii.
Requests the Government of Uganda to inform the Commission within one
hundred and eighty (180) days of being notified of this decision, the measures
taken to implement the present decision in accordance with Rule 112(2) of the
Rules of Procedure of the Commission.
Done in Dakar, Senegal, at the 22nd Extra-Ordinary Session of the African Commission
on Human and Peoples’ Rights held from 29 July to 07 August 2017
26