Does the state kill its own cases by torturing suspects?

Kampala, Uganda | THE INDEPENDENT | Last week, five suspects who were arrested over the attempted assassination of former Chief of Defense Forces Gen Edward Katumba Wamala and double murder of his daughter and driver, appeared at Nakawa Magistrates Court seemingly in pain from injuries sustained while in custody of government security forces.

Those who spoke to the gathered media told hallowing stories of how they were subjected to cruel and inhumane treatment in order to force them to confess to the crime for which they were arrested.

This was not the first time that suspects have been produced in court with visible torture marks. Since the spate of killings of prominent people started in 2012, suspects arrested have turned up in courts with gaping wounds occasioned on them by their captors. In fact, in 2017, then High Court Judge Margret Ouma Oguli awarded suspects who were arrested in relation to the killing of former spokesperson of police Andrew Felix Kaweesi each Shs 80million after they proved that they were maliciously tortured while in custody.

Still in 2017, photos circulated of former Kamwenge mayor Godfrey Byamukama with holes in his knees, also following his arrest on accusations of being involved with the murder of then police spokesman Andrew Felix Kaweesi. (Some explanations had it though that the deep wounds were a result of a diabetic condition coupled with lack of treatment while in detention and not directly drilled by government officials under whose custody he was.)

According to the Prevention and Prohibition of Torture Act 2012, any evidence that is obtained through torture is not admissible in court. Section 14 of the Act states that, “Any information, confession or admission obtained from a person by means of torture is inadmissible in evidence against that person in any proceeding.”

However, it also adds that actually such information, confession or admission may be admitted against a person accused of torture as evidence that the information, confession or admission was obtained by torture.

In Section 15, the Act adds that a person who uses information which he or she knows or ought to have reasonably known to have been obtained by means of torture in the prosecution of the person tortured, commits an offence and is liable on conviction to imprisonment not exceeding two years or a fine not exceeding forty-eight currency points or both.

There is also precedent in the past where court actually declined to hear the substantive case against accused people after it was proven that their rights were tramped upon while they were in detention. These court rulings came way before even the Prevention and Prohibition of Torture Act was enacted. In a petition by Dr Kiiza Besigye and 22 other suspects who were accused of trying to overthrow the government of President Museveni through the use of arms after the 2001 election, the Constitutional Court where they ran to challenge their arrest and trial in the military court and in other civil courts held that it couldn’t sanction any continued prosecution where during the proceedings, their human rights had been violated.

“No matter how strong the evidence against them may be, no fair trial can be achieved and any subsequent trial would be a waste of time and an abuse of Court process…At the end of the day, it is the Courts to enforce the provisions of the Constitution otherwise there would be no reason for having those provisions in the first place,” the judges held.

“We cannot stand by and watch prosecutions mounted and conducted in the midst of such flagrant, egregious and mala fide violations of the constitution and must act to protect the constitutional rights of the petitioners in particular and the citizens of Uganda in general as well as the rule of law in Uganda by ordering all the tainted proceedings against the petitioners to stop forthwith and directing the respective courts to discharge the petitioners.” the 2007 judgement reads in part.

In 2012, High Court Judge Ralph Ochan also dismissed the case in which 11 people were charged with terrorism for having participated in the 2009 Buganda riots that led to the burning of Nateete police station. However, before the court could rule on whether they had a case to answer, their lawyer Apollo Makubuya first implored the judge to determine whether the violation of their Constitutional rights rendered their prosecution a nullity and entitled them to compensation.

In his ruling, Ochan agreed with Makubuya and dismissed the case before its merits were even considered. “I must record my disappointment, deep disappointment with both the police and to some extent the prosecution,” Ochan’s ruling reads in part. “This case failed because both the police and the prosecution, in their desire to achieve a conviction at all costs totally ignored the basic and elementary requirements of not just police procedures and criminal procedure, but also ignored most importantly the fundamental duties imposed on all of them by the Constitution…The Constitution is the foundation, and pillar of our struggle to create a free society governed by laws and not men. I expect every legal practitioner to emphasize to their lay clients, the cardinal importance of this.”

But with this history of court dismissing cases after evidence is adduced that the accused person’s rights were violated, why then do the security forces continue sabotaging their own cases? Why do they bring suspects in court after they have badly tortured them? Why do they keep suspects for days in custody before they take them to court to be charged in 48 hours like the constitution says?

In answers to these questions, Kifampa Siraje Nsambu, the spokesperson of the Tabliqs in Uganda whose members have been the biggest victims of these tortures and arrests after the killing of prominent people, said this is done because security forces have failed to do their work.

Like Kifampa, William Kyomya a coordinator of Torture Survivors Association Uganda, an organization that brings together former victims of torture said sometimes security forces torture people because they are under pressure from their political bosses to have suspects in relation to a high profile killing.

Kyomya who was arrested in 2017 over allegations of engaging in terrorism and kept at Nalufenya police station for months without trial added that most of the times when they are tortured, their captors have very limited evidence against them. “So they resort to torture thinking that they will break you and you say something that can be used against you,” Kyomya explains. “Most of the people they torture are actually innocent!” Kyomya added.

This thinking is also similar to that of Eron Kiiza, a human rights lawyer who has defended a number of torture victims. Kiiza told URN that impunity by those with power is the main reason why torture goes on unabated.

Asked why when there is a clear law that makes it criminal to torture people, the act keeps on rearing its ugly face, Kiiza said most of the torture victims are people who have no capacity to sue their tormentors.

But for Elison Karuhanga, a lawyer with Kampala Associated Advocates, says although its reprehensible that some security personnel should torture people in order to extract evidence from them, such evidence shouldn’t be wholesomely dismissed as inadmissible.

Karuhanga adds that investigating terrorism cases across the world is a challenging task therefore there must be away of segregating the bad acts of individual security officers which must not be used to paint the whole institution as evil.

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URN