The official report of the adhoc committee on the plight of members of parliament and other suspects who were brutally arrested and detained by security forces in the run up to the Arua Municipality by-elections of August 15, 2018 has confirmed that the suspects were tortured by the unit of the Special Forces Command (SFC).
The report says MPs on the committee on August 16, at 9.00am found MPs Paul Mwiru, Gerald Karuhanga, Wadri Kassiano, former MP Michael Mabikke and about 26 other suspects at the holding facility for suspects at the Magistrates’ Court in Gulu, awaiting appearance before the Court. Five of the suspects were women.
However, members established that MP Robert Kyagulanyi Robert Sentamu aka Bobi Wine Francis Zaake were not among them. According to the report, later when the Committee met with the UPDF 4th Division Commander Brigadier Emmanuel Kanyesigye, he initially denied holding MP Kyagulanyi at his barracks, but later implicitly contradicted himself.
He informed the Committee that Kyagulanyi had been brought to the barracks, specifically to the military hospital for treatment of injuries sustained in a fight with unknown people. Tasked to reveal the identities of whoever had brought Kyagulanyi to the military facility, he referred the Committee to the Special Forces Command (SFC) and the Police.
The Committees observes gross insincerity on the part of the military at the Gulu Military barracks considering that within a few hours of denying the presence of Hon. Kyagulanyi in detention at the barracks, he was arraigned in the General Court Martial sitting at the same barracks.
At the time of the Committee’s visit to Gulu, the whereabouts of Hon. Zaake Francis were unknown to both the Police and Military at the time, raising further questions about his fate especially in light of gory images of him that circulated on social media a few days earlier. “The Committee found this strange considering that Hon. Zaakc Francis had been arrested by the military together with the other suspects,” the report says.
The Committee later learnt on Sunday August 19, 2018 that Hon. Zaake had been found dumped in the vicinity of Rubaga Hospital unknown people in Kampala. However when the Committee later attended the court session at the Chief Magistrate’s Court in Gulu, where the suspects were charged with the offence of treason, the charge sheet included the names of Hon. Kyagulanyi Robert Ssentamu and Hon. Zaake Francis as A5 and 46 respectively.
The physical condition of the suspects
“An interface with and observation of the detained MPs and other suspects revealed that they had been severely battered with Hon. Karuhanga Gerald, Hon. Mwiru Paul and Hon. Michael Mabikke complaining of chest and back pain. Hon. Karuhanga Gerald was limping as a result of an injury to his knee. They stated that they had been viciously brutalized during and after arrest while in Police custody in Arua and during transportation between the place of arrest and detention at Arua CPS and later Bombo Military barracks,” the report says.
They further informed the Committee that the brutality and beating was administered by men dressed in uniforms of the Special Forces Command (SFC). Of the other 26 suspects jointly detained with the MPs, 5 were women. Two of the women, according to the report, could neither sit nor stand as they groaned in excruciating pain on the floor of the suspects’ holding facility at the Magistrate’s court in Gulu.
They could barely speak. One of the women, Asara Night was reportedly suffering blood hemorrhage from her private parts. Their condition was symptomatic of the effects of brute force and savagery either at arrest or during detention. “One of the female suspects informed the Committee that her baby of barely sixteen months with whom she was arrested had been left behind in Arua,” the report says.
One of the male suspects, Atiku Shaban could neither walk nor sit and complained of extensive bodily pain arising out of severe beating while in detention.
The Committee is cognizant of the provisions of Article 24 and Article 44 (a) of the 1995 Constitution, which prohibit torture, inhumane and degrading treatment. The Constitution of the Republic of Uganda, 1995 is reinlorced by the Prevention and Prohibition of Torture Act, 2012 that criminalizes torture in any form. Uganda is a party to the UN Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment and Punishment and other related matters.
While the Committee was flatly denied access to MP Kyagulanyi while in detention at Gulu Military barracks, its Member-MP Medard Lubega Ssegonna who together with Hon. Basalirwa Asuman who volunteered at that time, to offer pro-bono legal representation to Hon. Kyagulanyi, was later allowed access to him during the court martial proceedings.
This followed an earlier episode where the Committee and other Members of Parliament were forcefully chased out of Gulu Military barracks where they had earlier been allowed. “This was on orders of the Commander of the 4th Division army barracks, Brig. Kanyesigye Emmanuel,” says the report.
MPs Ssegona and Basalirwa informed the Committee that Hon. Kyagulanyi Robert Ssentamu was in a terribly dire and worrying state, unable to sit, stand or speak with visible signs of cruel and brutal treatment, with his face swollen and a wound to his ear and at the back of his head. there was no interaction with MP Kyagulanyi as he could not speak.
Despite his already dire situation, MP Kyagulanyi was still handcuffed in detention at Gulu 4tn Division barracks and he was unconscious during the proceedings of the General Court Martial.
During the Committee’s interface with Hon. Kyagulanyi Robe rt Ssentamu in detention at Makindye Military barracks on August 20, 2018, he was ignorant of the charges that had been preferred against him at the General Court Martial in Gulu on Thursday August 16, 2018. “This is testimony of his unconscious state during his first appearance at the General Court Martial,” the report says.
Whether the rights of the detained suspects were being respected.
Article 23 (3) (b) requires a person restricted or detained to be produced in Court as soon as possible but in any case not later than forty-eight hours, In the case of all the 34 suspects in detention, this right was blatantly violated, the report says. The suspects were arrested on Monday 13th, August 2018 and only arraigned in Court on Thursday 16th August 2O18, about 72 hours alter arrest.
“Article 23 (5) (a) of the Constitution of the Republic of Uganda, stipulates the rights of a person who is restricted or detained to have their next of kin informed as soon as practicable of the restriction and detention. The same Article requires access to a next of kin, lawyer and personal doctor of the person so detained. Again this right was violated,” the report says.
That no next of kin was allowed access to the Hon. Kyagulanyi Robert Ssentamu and that both Members of Parliament as well as his family were being misled by both the Police and the military as to the whereabouts of the detained Hon. Member, Even when he was being arraigned before the General Court Martial, his wife, relatives, friends and colleagues Members of Parliament were denied access both to the suspect and to the proceedings of the General Court Martial.
The suspect was denied access to his personal doctor even when his condition was confirmed to be worrying.
Committee notes that the deprivation of the suspects in their deplorable state, of access to private specialized medical help of their private doctors predisposed the suspect to grave danger to their health and possible death. From the time of their brutal arrest and detention on 13th August 2018, Hon. Kyagulanyi Robert Ssentamu, despite his deplorable able to access his private doctors on Monday 20th August 2018, the same day that the Committee accessed him in detention at Makindye Military barracks.
The report says the above was completely oblivious to the cardinal medical concept of the “Golden Hour”- a decisive timing in either saving one from death or averting devastating health consequences especially after an injury or grievous bodily harm. The “Golden Hour”, also known as golden time, refers to the period of time following a traumatic injury during which there is the highest likelihood that prompt medical and surgical treatment would prevent death.
Article 23 (2)of the Constitution of the Republic of Uganda, provides that a person restricted or detained shall be kept in a place authorized by law, The Committee observes that Hon. Kyagulanyi Robert Ssentamu was detained in 2 military barracks Gulu Fourth Division and Bombo. Hon. Francis Zaake’s place of detention was never brought to the attention of the Committee. The rest of the Members of Parliament were detained in Bombo Military barracks and Arua and Gulu Police Stations. Gulu and Bondo Military barracks are not gazetted detention facilities; therefore the detention of suspects in those places violated Article 23 (2) of the Constitution of the Republic of Uganda, 1995.
Article 28 (1) of the Constitution of the Republic of Uganda, 1995 provides that, 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.
However the proceedings of the General Court Martial when Hon. Kyagulanyi was arraigned was largely closed door with only Hon. Sscggona and Hon. Basalirwa Asuman allowed after lengthy pleading. Not even the suspect’s wife and family members were allowed to witness the proceedings’ The Committee observes therefore that right to a public hearing in the case of the Hon. Kyagulanyi was denied.
Article 28 (21) of the Constitution of the Republic of Uganda, 1995 provides that nothing in clause ( 1 ) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.
The Committee notes that the General Court Martial did not pronounce itself on barring the public from attending its proceedings. This decision was purely of the Military at the barracks, Article 28 (31 (bl provides that every person who is charged with a criminal offence shall be informed immediately, in a language that the person understands, of the nature of the offence. However the unconscious state in which Hon. Kyagulanyi was at the time he was arraigned at the Gcneral Court Martial in Gulu implies that he could not and indeed did not understand the charges read out to him.
The Committee proved on 20th August 2018 during their visit to Kyagulanyi during which he was totally unaware of the charges read out to him on the 1 6th, August 20 18. The Committee was informed that Hon. Kyagulanyi’s inability to ‘ speak due to his deplorable physiological slate was met with a threats of being charged for contempt o[ the General Court Martial by the Chairperson of the General Court Martial.
The Committee observes that the unleashing of brutality by the military and other agents of the State unto Ugandans as exemplified in the run up to the Arua Municipality by-elections is an affront on rights and dignity of mankind.
Article 20 of the Constitution of the Republic of Uganda, recognizes that fundamental rights and freedoms of the individual are inherent and not granted by the State, and that the rights and freedoms of the individual and groups enshrined in Chapter four of the Constitution includes; respect for human dignity and protection from inhuman treatment, life, health and a fair hearing shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
The Committee observes that the brutalization and maiming of suspects and journalists not only a worrying sign of a slip-back in the rule of law but also dents the faith of citizens in Government and erodes the sense of nationhood and casts the country in bad light in the international community. The Committee recommends that those individuals and State institutions that are complicit in the derogation of human rights and dignity should be punished. Justice must not often be done but must be seen to be done, the report says.
The role of the military in law enforcement Article 209 of the 1995 Constitution stipulates the function of the Defence forces as follows; a) to preserve and defend the sovereignty and territorial integrity of Uganda; b) to co-operate with the crvilian authority in emergency situations and in cases of natural disasters; c) to foster harmony and understanding between the defence forces and civilians; and d) to engage in productive activities for the development of Uganda.
The Committee notes that in the case under consideration by the Committee, the military may have assumed a role that is not theirs, as matters of the preservation of law and order are a preserve of the Police as provided for under Article 212 of the 1995 Constitution of the Republic of Uganda.
According to the report, the very act of security personnel beating up civilians contravened- Article 24 of the 1995 Constitution on the respect of human dignity and protection from inhuman treatment and Article 221 of the same Constitution, which provide s that “It shall be the duty of the Uganda Peoples’ Defence Forces and other armed force established in Uganda, the Uganda Police Force and other police force, the Uganda Prisons Service, all intelligence services and the National Security Council to observe and respect human rights and freedoms in the performance of their functions.”
“The Committee did not find any evidence that the situation in Arua was beyond the ability and capacity of the Uganda Police Force and therefore finds the recourse to brute force by the military against civilians not only disproportionate but also inhumane.
addition, the report says, other suspects that remain in detention yet nursing horrendous body injuries, namely, Hon. Mwiru Paul, Hon. Karunhanga Gerald, Hon. Mabikke Michael, Ms. Asara Night, Atiku Shaban should be immediately accorded an opportunity to receive appropriate specialized medical attention.
Health and life are preconditions for a fair trial and should therefore be prioritized. For the transgressions by State security forces on human rights and dignity as witnessed by the killing of a one Yasin Kawuma in Arua on 13ft August 2018, the grievous bodily harm occasioned unto Members of Parliament and other suspects as well as other individuals, the Committee recommends expeditious justice and accountability if the rule of law is to be respected and the pattern of State-orchestrated violence stemmed.
The Committee therefore recommends that Speaker of Parliament takes it upon herself to liaise with the President and other relevant authorities to enable Hon. Kyagulanyi be referred outside the Makindye Military barracks for better medical management as well as to have a meaningful trial.
The need for protection of the dignity of the common Ugandan
The egalitarian principle of human dignity, the report notes provides that every human person regardless of creed, status, ethnicity, rank, moral standing, belief system or political persuasion is entitled to inalienable dignified treatment no matter what they do or what happens to them. The law and public institutions exist to protect such dignities.