COALITION AGAINST TORTURE MEMORANDUM TO THE PARLIAMENTARY COMMITTEE OF LEGAL AND PARLIAMENTARY AFFAIRS On THE PROHIBITION AND PREVENTION

OF TORTURE BILL, 2010 9 February 2012

CONTACT
Coalition Against Torture African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) Block 39 Plot 113 Owen Road Kamwokya (off Tuffnell Drive) Tel: +256 312 263918 +256 312 263620 Fax: +256 312 263919 Email: act@actvuganda.org Web: www.actvuganda.org

INTRODUCTION 1. The Coalition Against Torture (CAT) is a grouping of national and international organizations committed to the campaign against torture in Uganda. These organisations include among others; Avocats Sans Frontieres (ASF), Foundation for Human Rights Initiative (FHRI), Kumi Human Rights Initiative (KHRI), Refugee Law Project (RLP), Uganda Discharged Prisoners Aid Society (UPDAS), African Centre for Treatment and Rehabilitation of Torture Victims (ACTV), Associations of Human Rights Organisations in the Rwenzori Region (AHURIO), Human Rights Network Uganda (HURINET) and Human Rights Focus (HURIFO). These Organizations have been working together with the Uganda Human Rights Commission (UHRC), Office of the High Commissioner for Human Rights (OHCHR), REDRESS UK, Association for the Prevention of Torture (APT) Switzerland, International Rehabilitation Council for Torture Victims (IRCT) and Open Society Initiative of Eastern Africa (OSIEA), Irish Embassy, British High Commission. 2. The Coalition welcomes the initiative of the 9th parliament to enact a specific law against torture and the opportunity to present its input into the bill. The Coalition has over the last couple of years collected views on the bill through public dialogues with a wide range of stakeholders including the Uganda Law Reform Commission, all JLOS institutions, members of the public, the bench and the bar and other civil society organisations. It has also participated in benchmark visits to Burundi and the Philippines. The lessons learnt, experiences shared and views collected are contained in this memorandum. THE IMPORTANCE OF THE BILL 3. That torture is a prevalent vice in Uganda is evident in the reports of the Uganda Human Rights Commission (UHRC). In its past annual reports, torture has remained the leading reported case of human rights violation. It reported 314 cases in 2009, and 276 in 2010 accounting for 28.3% of the complaints received.1 The Commission also reported that of the top five complaints registered in the last four years torture has remained the lead violation of human rights. It has accounted for 23.65% in 2007, 29.6% in 2008, 31.0% in 2009 and 28.3% in 2010.2 4. Uganda is a state party to several international and regional human rights instruments among which are; the Universal Declaration for Human Rights, 1948, International Covenant on Civil and Political Rights 1966, African Charter on Human and Peoples Right, 1986. All of these instruments prohibit torture.

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UHRC report 2010 11., 17 As above 17.

5. In particular, Uganda has ratified the UN Convention Against Torture, 1986. Further, in her periodic review reports to the African Commission,3 the Committee Against Torture and the Human Rights Council,4 the State has undertaken to enact a specific law against torture. The JLOS strategic plan also places the enactment of a law against torture as one of its objectives.5 6. The bill is therefore a step in the fulfillment of Ugandas international and regional obligations in making torture a specific crime. It is also useful in the operationalization of the absolute prohibition provided under the constitution.6 The bill provides a tool for holding perpetrators of torture, individually and severally to account. CAT RECOMMENDATIONS ON KEY ASPECTS OF THE BILL 7. Criminalisation of torture Although the constitution guarantees the freedom from torture as a non-derogable right, the obtaining legal framework does not make torture a criminal offence. Persons who would have otherwise been charged and punished for the grave and heinous crime of torture end up being charged, if at all, with common crimes such as aggravated assault, causing grievous bodily harm, assault, common assault among others. These penal provisions do not address the complex and serious nature that the crime of torture is. CAT Recommendation The Coalition recommends that the current provision of the bill that makes torture a criminal offence be maintained. This would enable the realization of the absolute prohibition of torture under the constitution and distinguish the offence of torture as a more serious offence than aggravated assault, causing grievous bodily harm, assault and common assault. This would also make it clear to perpetrators that the practice is punishable, thereby providing an important deterrent.

8. Definition The penal law regime does not precisely define the nature of the act that would amount to torture. This has led to the perception that domestic violence or corporal punishment for instance is torture. Besides, the constitution requires under article 28 (12) that no one shall be charged or convicted of any offence unless the offence is defined.

Periodic report by the Government of Uganda to the African Commission on Human and Peoples; Rights presented at the 49th Ordinary Session (2011)12. http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_306.pdf (accessed 7 February 2011). 4 Human Rights Council working group on the Universal Periodic Review Twelfth session 3-14 October 2011 A/HRC/WG.6/12/L.14 Para 18 the government in its report under the Universal Periodic Review states that Uganda is in the process of domesticating the UN CAT through the enactment of the Anti-Torture Bill. 5 JLOS Draft third sector strategic investment plan (SIP III) 2012/13-2016/17 (2012) 54. 6 Article 24 & 44
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Further, the definition provided under the UN Convention Against Torture is limited to public officials. It makes torture an offence that can be committed only by agents of the state. This definition has now been overtaken by developments in international criminal law 7 and the jurisprudence of the UHRC, 8 which have all found that both state and non-state actors can commit torture. This is the progressive definition of the offence of torture. In the Philippines for instance, acts of torture committed by private individual have been criminalized under the International Humanitarian Act. CAT Recommendation- The Coalition recommends that the definition of torture offered by the bill be adopted to make torture an offence that can be committed by both state and non-state actors. This will ensure that the absolute prohibition and condemnation of acts of torture is not only directed at state actors but private persons and non-state actors as well.

9.

Punishment- The constitution provides under article 28 (12) that a clear sanction should be provided for one to be charged and convicted of any crime. The principle is that the punishment should be proportionate to the offence. Torture is an offence that has been roundly rejected by the international community, it is a non-derogable freedom that has attained a jus cogens norm in international customary law. As such the punishments for torture must reflect such condemnation. The bill proposes a maximum sentence of 15 years imprisonment on conviction for the offence of torture and life imprisonment where there are aggravating circumstances. Besides, the bill proposes a discretionary power to the court for orders of compensation, restitution and rehabilitation. CAT Recommendation- The Coalition recommends that the sentence and discretionary orders proposed in the bill be maintained. The Coalition further recommends that the proposed discretionary order, being charged on the state, if the offender is a public official acting in official capacity, be left to the discretion of the court depending on whether it is the state or the offender who is in a position to offer adequate compensation to the victim.

10. Superior Responsibility: Perpetrators of torture often times find solace in the defence that they were executing orders from above. This in many cases has led to them not being held to account even when the order is unlawful. In many cases indeed, taxpayers are left to shoulder the burden arising from these actions. This is on the principle of vicarious liability.

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See the Rome statute and the Uganda ICC Act, 2010. Tumuramye Fred v Bwete Gerald UHRC No.264/1999.

The bill proposes a two-pronged approach to this dilemma. It seeks to provide an exception to the principle of vicarious liability and makes the defense of orders from above in-applicable in the case of torture. In other words no one will be able to invoke superior order as a justification for torture. The bill also makes the superior whose juniors have committed the offence equally responsible if he/she knew, or consciously disregarded information which clearly indicated, that the subordinate was committing or was about to commit torture. This is similar to the Philippines AntiTorture law.9 CAT Recommendation- The Coalition recommends that this proposal be maintained so that individual officers take full responsibility for their actions and commands. 11. Parties to the offence of torture many actors either through direct support, incitement, aiding or abetting, financing, soliciting, and procurement usually facilitate the commission of the offence of torture. Many times these people are not seen as equally responsible for the commission of torture. Yet, if it were not for their role, torture perhaps would not have been committed. The bill seeks to make them parties to the commission of the offence of torture provided they knowingly or having reason to believe that their support would be applied or used for or in connection with the preparation or commission or instigation of torture. Further, the bill provides for a sanction of imprisonment upon conviction of up to seven years or a fine not exceeding 68 currency points. CAT Recommendation- The Coalition recommends that this provision be maintained but that they should also be made liable to provide compensation, restitution or rehabilitation to the victims of torture to which these acts are directly linked.

12. Jurisdiction and making torture an international crime- Offenders often time seek to flee the country in which they have committed grievous crimes. They seek sanctuary in countries whose legal regimes are weak and accommodate such criminals. The bill seeks to make torture an international offence so that no one will seek to hide in Uganda after committing torture in a foreign country. CAT Recommendation- The Coalition recommends that this provision be maintained so that torture is an international crime and people who commit it do not find sanctuary in Uganda.

Section 13(2) (3).

13. Use of information obtained by Torture: Torture is usually committed for the sake of obtaining information from the victim. Further, although the Evidence Act10 of Uganda provides that information obtained by means of coercion is not admissible in court of law, it is only a procedural prohibition without sanction for the acts. The evidence act also provides that a confession is irrelevant if it has been obtained by cause of violence, force threat, inducement or promise, calculated in the opinion of the court to cause an untrue confession to be made. 11 However, there is no penalty against such a person. So this bill introduces a penalty for a person that uses information obtained by torture in the prosecution of the persons tortured. CAT Recommendation: The Coalition recommends that this provision be maintained to ensure that the reasons that are often used to justify the heinous acts of torture are curtailed. Further, people would be dissuaded from using information that is obtained through torture and it would also render one of the primary aims of torture redundant. 14. Right to complain: The bill provides that where a complaint of torture is made to the magistrate she/he will cause an investigation into the allegation and if proved to be true he/she will order for an examination and treatment of the persons affected at the expense of state and any person responsible for the torture shall be charged. CAT Recommendation: The Coalition recommends that this provision be maintained to ensure that speedy, impartial investigations into the acts of torture are carried out and that Victims of Torture can receive adequate treatment at the expense of the state. 15. Jurisdiction of the Offence: The bill places the jurisdiction over the offence of torture at the Chief Magistrates Court because the criminal jurisdiction is Life imprisonment 12 and the civil jurisdiction is fifty million.13 CAT Recommendation: The Coalition recommends that this provision be retained as it will enhance access to justice for both the Victim of Torture and the Perpetrator to have a speedy trial since magisterial areas are more accessible compared to high courts. 16. Restriction on Extradition: The bill makes torture an extraditable offence with an exception that a person shall not be deported or extradited from Uganda to a country where she/he is likely to be tortured, but ensures that such person shall be tried in Uganda. This principle of universal jurisdiction constitutes one of the most important aspects
Evidence Act Cap 6 Section 24 of the Evidence Act Cap 6 12 See Section161 (1) Magistrates Courts Act Chapter 16 13 See Section 207Magistrates Courts Act Chapter16
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internationally in the fight against torture. The Philippines Anti-Torture legislation bears the same provision.14 CAT Recommendation: The Coalition recommends that this clause be maintained to establish jurisdiction over the crime of torture, irrespective of whether the crime was committed outside Uganda and regardless of the alleged perpetrators nationality, country of residence or absence of any other relationship with Uganda. Further, extradition would ensure that the perpetrator of torture is still held liable regardless of the inability of the state to try the offender. 17. Amnesty: The bill states that a person accused of torture shall not be granted amnesty. This provision is similar to the Philippines Anti-Torture legislation15 that states that a person who has committed acts of torture cannot benefit from any law providing for amnesty. CAT Recommendation: The Coalition recommends that this clause be maintained as it is intended to avoid depreciation of the crime of torture as such benefit would in effect exempt them from any criminal proceedings and sanctions. 18. In conclusion, the Prohibition and Prevention of Torture Bill is a culmination of over six years of deliberations, meetings and dialogues of stakeholders from not only government related institutions but also from Civil society and its enactment into law is long overdue. Our belief as CAT is that we are now nearing the finishing line of this journey and thank the Legal and Parliamentary Affairs Committee very much of being part of this process.

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See Section 17 See Section 16