The Ntungamo Election violence: What are the available Pre-trial Remedies to an Accused-person

By Arinda Herbert Kainlawren

The pre-trial stage is the period after one is charged with a crime but before their trial ensues. During this time, the accused has the option to enter a plea in response to the charges brought against them. If they plead not guilty to the offense, a judge will decide what issues to address before trial; while a remedy is a means with which a court of law enforces rights and redresses wrongs or threats of harm or injury. So, a pre-trial remedy is a judicial or none-judicial relief granted by the justice institutions such as police, and courts of law in the exercise of jurisdiction to enforce or safeguard a right.

Despite the universal importance of human rights and of the legal structures in the adjudication of disputes, the implementation or adherence to the purpose of legal framework varies from country to country. However, in general pretrial remedies are uniform and universally applied in all jurisdictions. Most if not all the pre-trial remedies are founded on human rights, and form part of the requisite tenets for any democratic state. Therefore, the State, all organs and agencies of the State including all persons are enjoined to respect, uphold and promote these rights and freedoms guaranteed under the 1995 Constitution of the Republic of Uganda. The succeeding Articles of Constitution, to say;Art.23 – protection of personal liberty, Art.24 – respect for human dignity and protection from inhuman treatment, and Art.28 – right to a fair hearing are the most relevant to the pre-trial and trial process in Uganda. They basically set the basis and standard for the administration of justice in Uganda. In effect, once these basic standards are breached, the victim shall under the Constitution be entitled to apply for redress by bringing an action against the desecration, and they would be entitled to compensation.

Competitive political environment in developing democracies

However, that notwithstanding, the International Foundation for Electoral Systems has noted that developing democracies in Africa and world over are known to face numerous challenges affiliated to the prevalence of a very intensely competitive political environment or elections. As a result, there are increased numbers of electoral disputes, political persecution, arbitrary arrests, and abuse of court process by the States among others.

The most recent case being that which occurred on the 6^th September 2020 wherein it is alleged that Mr. Mwesigwa Rukutana, the State Minister for Gender, Labour and Social Development, after being defeated in the NRM primaries, turned violent and took a gun from one of his bodyguards and shot two people who were rushed to the hospital in a critical condition. Consequently, the police in Ntungamo District arrested and detained him plus his three bodyguards. Shortly thereafter, the H.E President Museveni demanded that the remanded minister be denied bail on grounds that the police has clear evidence against him and his co-accused.

In such circumstances, I will briefly delve into the available pretrial remedies that one would legally seek from the police, and the courts of law pending or during their trial. The law in Uganda, generally provides one with the right to a police bond, to apply for court bail, and to apply for a writ of habeas corpus depending on the circumstances of the case.

First, where one has been arrested, the Constitution requires that such persons arrested are presented before a court of law before the lapse of 48 hours. The police are therefore mandated under the Criminal Procedure Code Act to release such persons on police bond pending completion of investigations. 

Secondly, and in the alternative, once the accused is presented to the Court, they may exercise their right to apply for bail as guaranteed under the Constitution. However, the choice to grant or not to grant bail is one that is purely dependent on judicial discretion as the Court may deem fit on a case by case basis.

Thirdly, in the event that it is required for the accused’s personal freedoms to be assured, then it becomes necessary to apply for a writ of Habeas Corpusfor the Court to determine the legality of their detention; and make such orders as to his or her release if the detention is found to be unlawful. This right is inviolable and non-derogable under the Constitution.

In conclusion, Courts in Uganda generally process hundreds of electoral related cases during the election season but mostly arising out of elections disputes or complaints. Each of those cases requires a judicial officer to determine whether or not an accused or suspect is entitled to the available pre-trial remedies. Although public safety is at times not considered a good reason to impose conditions to the grant of pre-trial remedies, today it is recognized as an underlying goal of any effective justice systems. 

Therefore, it is incumbent upon all Courts to safeguard both the rights of the accused person and the need for public safety whether there are presidential directives or not. Until the law is amended, the remedies guaranteed under the laws of Uganda as discussed herein shall remain guaranteed for all accused persons in Uganda. Safeguarding those remedies is very crucial given that pretrial remedies are a valuable resource for making vital improvements in any given criminal justice system. It is basically a rational safeguard considering that one has the right to be presumed innocent until proven guilty.

Arinda Herbert Kainlawren is a Senior Associate – Dispute Resolution, Cymbell Advocates Uganda