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Part 2 The effectiveness of the African human rights system in responding to allegations of torture

By Christopher Kato Mpanga

Torture in Uganda

What is torture?

Provision 4 of the ACHPR, 2002 adopted the United Nation’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment’s (UNCAT) definition of torture. This definition was equally adopted by the RIG. Consequently, this author will use this as the definition of torture.

Article 1 of the UNCAT defines torture as any action through which serious pain or suffering, whether physical or psychological, is deliberately administered on a person with an aim of getting information or a confession from him or her. The torture may be carried out by, or on the instructions of a public official, or any other individual working in an official capacity. The banning of torture under international law encompasses the prohibition of different torture actions such as administering electric shock on private parts of either men, or women, suffocating people by tying polythene bags around their heads, intentionally drowning victims in water, rape, clobbering people on the soles of their feet, hanging victims by their hands or feet for long periods of time, among others.

Forms of torture in Uganda

The most frequent forms of torture in Uganda constitute unlawful detention, detention of people without being allowed to have any communication with their family or friends, intimidation, involuntary disappearances, threats through phone calls or text messages, and extrajudicial executions. As a result, these breed fear, ill health, false confessions, mental health problems, disability, injuries, and death of the people that undergo the torture.

The most affected categories of the people include members of the government’s opposition, advocacy bodies, journalists, human rights activists, and suspects of minor and capital crimes. Every year, the Uganda Human Rights Commission’s (UHRC) reports show the army and the police as the leading violators of human rights, including the perpetration of torture.

However, it ought to be noted that torture is not only carried out by the state, but also non state entities such as private company security personnel, people’s relatives, rebel groups, among others. For example, a rebel group called the Lord's Resistance Army (LRA) in Uganda committed torture acts against people in the Northern part of the country. The acts carried out by the LRA constituted unlawful killing of people, sexual slavery, rape, cutting off people’s ears, disfiguring of the victims’ lips, among others.

On the other hand, in the family setting, children have been tortured by in form of punishment by housemaids, step parents, their mothers or fathers, or other relatives. Nevertheless, this dissertation will focus on torture cases perpetrated by security forces in Uganda.

Case studies of the communications made to the African Commission

Although this case study involve different accusations of the breach of the Banjul Charter, this author will focus on the allegations of torture, and the commission’s recommendations, and subsequent follow up if any, to resolve the claims. This writer has chosen to focus on one case study because there are no successfully prosecuted torture cases from Uganda at the commission (whose torture has been carried out by security forces).

Communication 431/12 – Thomas Kwoyelo v. Uganda

The African Commission has not been effective in responding to torture allegations by security forces in Uganda because of a high burden of proof required from complainants to prove such allegations.

In the Thomas Kwoyelo v. Uganda case (Communication 431/12) where the victim Kwoyelo, represented by Onyango and Company Advocates, the complainant, tabled allegations of torture against the Uganda government, the respondent, the commission ruled that there was no breach of Article 5 of the Banjul Charter. This was because there was lack of sufficient evidence to prove so.

In this communication, it was claimed that in March 2009, Kwoyelo, a child soldier kidnapped by the Lord’s Resistance Army (LRA) in Northern Uganda in 1987, was shot and badly wounded on the battleground in the Democratic Republic of Congo.

On being given treatment from his injuries, Onyango and Company Advocates purported that Kwoyelo was abducted from the medical centre, and whisked away to a private house in Uganda, where he underwent torture and brutal treatment for a period of 12 weeks. In addition, the complainants alleged that Kwoyelo was blocked from accessing his lawyers or members of his family. Consequently, in June 2009 and in August 2010, he was indicted for various crimes as per the Ugandan Penal Code, and the country’s Geneva Conventions Act of 1964.

Despite applying and qualifying for amnesty under Uganda’s Amnesty Act 2000, the Director of Public Prosecutions (DPP) declined to issue him an amnesty certificate. Even when the country’s Constitutional Court, Court of Appeal, and the International Criminal Division of the High Court of Uganda, among others ordered for the victim to be granted amnesty, the state declined to free Kwoyelo from detention.

Eventually, without giving any substantial reasons for ignoring the lower courts rulings, Uganda’s Supreme Court issued a temporary order halting the implementation of any court orders on this case. As a result, Kwoyelo stayed in indefinite detention.78

Having examined the complainant’s claims through the Commission's communication procedure, the African Commission ruled that there was no breach of Article 5 of the Banjul Charter by the respondent country. This is because the complainant did not provide enough evidence to prove such a violation. Therefore, the accused state was not found liable for torturing Kwoyelo.

A similar ruling was made in Communication 339/2007, where Patrick Okiring and Agupio Samson, represented by Human Rights Network and ISIS-WICCE, submitted a torture case against the Republic of Uganda.

However, in Velásquez Rodríguez v. Honduras, a case that was brought before the Inter-American Court of Human Rights, the court ruled that the victim had been tortured despite having no direct evidence linking the respondent to have done so.

In this case the victim, Mr Velásquez Rodríguez, a student at the National Autonomous University of Honduras claimed to have been abducted and subsequently tortured by the respondent, Honduras, through its security agencies. Velásquez is said to have been kidnapped and eventually imprisoned because of engaging in activities that the government considered a danger to national security.

Despite having no direct evidence connecting Honduras’s security agencies to torturing the victim, the court held that the respondent violated Article 5 of the American Convention on Human Rights. This is because Honduras had built a track record of torturing detainees in the past.

In a report published by the Uganda Human Rights Commission in 2018, torture ranked the highest with 346 complaints registered. This signified a 13% rise from the 306 cases that had been reported in 2017. Moreover, this was followed by accusations of detention for more than 48 hours by Ugandan security forces in breach of Article 23 (4)(b) of the country’s 1995 constitution, registered at 323 complaints. This showed an increase of 16.6% from the 277 grievances that had been registered in 2017. Of these complaints, the Uganda Police Force (UPF) had the highest number of physical torture accusations amounting to 296 complaints, and allegations of illegal detention recorded at 203.

A case in point is during the 2018 Arua municipality Parliamentary by-election. According to the Parliamentary report on torture, in these polls, 33 people were arrested and detained beyond the constitutionally stipulated 48 hours. During their detention, the victim’s rights to access urgent medical care, and their freedom to talk to their next of kin, or their lawyers, was violated. In addition, the illegal detention of the victims especially those that had been badly tortured, exposed them to a risk of ill health and poor wellbeing. This demonstrates Uganda’s track record of torturing detainees.

Similarly, just like the Inter-American Court of Human Rights decided in Velásquez’s case, in order to develop a more robust approach to dealing with torture cases presented to it, the African Commission ought to lower its burden of proof for torture cases. This ought to be considered in cases where an accused country has a proven track record of its security agencies torturing victims in detention.

Nevertheless, in Communication No. 218/98 where the Civil Liberties Organization and others brought a case against Nigeria before the African Commission in 2001, the Commission asserted that claimants who bring allegations before the Commission bear the initial burden of presenting the facts in support of their claims. It further added that accusations of torture must be proven by the people making them. In another case before the commission where Jean Yaovi Degli and others brought a case against Togo, the commission contended that it is not sufficient to claim that the victims experienced torture without availing the evidence regarding the date, location, the torture acts perpetrated, and the outcomes the victims may, or may have not experienced. In Civil Liberties Organization and others v Nigeria, the commission further maintained that without being presented such information, it can hardly find a contravention of Article 5 of the Charter.

In his scholarly work, Commentaries on the Laws of England, issued in the 1760s, William Blackstone contended that it is far better for 10 guilty men to go free than for one innocent person to be convicted wrongly. This demonstrated the importance of the burden of proof of beyond reasonable doubt, required in criminal cases. Since the penalties in criminal cases are often high, it is unwise to make a ruling without having all the necessary evidence. Therefore, as opposed to using past patterns to make a ruling on torture as demonstrated in the Velásquez case, it is essential to find the necessary evidence before convicting a respondent as maintained by the Civil Liberties Organization and others v Nigeria, and the Jean Yaovi Degli and others v Togo cases.92


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