The 48-hour rule: A cornerstone of Justice! - Center For Forced Migrants
The 48-hour rule: A cornerstone of Justice!

The 48-hour rule: A cornerstone of Justice!

In this blog I opine that the “48 hours in detention” should include weekends and public holidays, for the wording is unambiguous; 48 hours from the time of the arrest.

The right to personal freedom from arbitrary arrest, enshrined in Articles 3 and 9 of the Universal Declaration of Human Rights, is one of the most fundamental human rights, affecting as it does vital aspects of an individual’s physical freedom. The grounds for deprivation of a person’s liberty are circumscribed in law, as stipulated in Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). As a signatory to the ICCPR, Uganda domesticated the right to personal liberty under Article 23 of the 1995 Constitution. The circumstances under which this right might be curtailed are also well spelt out, and include reasonable suspicion that a person has committed or is about to commit a criminal offence under the laws of Uganda; execution of a sentence or order of the Court; and prevention of the spread of infectious or contagious disease,[1] among others.

Therefore, an arrest is a ground on which personal liberty may be deprived. But under what circumstances is one arrested, and what happens after an arrest? Under Ugandan law , if there is reasonable cause to suspect that a person has committed or is about to commit a crime,[2] the Uganda Police Force has the power to arrest a suspect with or without a warrant. A suspect arrested on suspicion of having committed a crime should after that be informed in a language that they understand, of both the reason for their arrest or detention and their right to a lawyer of their choice.[3] Those detained should also  be produced in court as soon as possible, no later than 48 hours from the time of arrest.[4]

As a practising advocate of the High Court of Uganda, I have provided legal advice to over 100 suspects in different police stations. One thing stands out across the board: most suspects ( approximately 80%) are detained beyond the required 48 hours, despite the fact that the police have the mandate to release a suspect on police bond earlier than 48 hours, with or without a surety.[5] In one particular case I followed up, six male suspects from the refugee community, between the ages of 16 and 23 were arrested for assault and detained for a week. My efforts to apply for their release on police bond were futile. The police alleged that investigations were complete, and yet the police form for medical examination of the victim was still missing. Why do the police continue to violate a constitutional right by detaining suspects beyond 48 hours?

Justifications given by the police for the detention of suspects beyond 48 hours include; inadequate facilities to conduct investigations within 48 hours in particular capital offences like murder and defilement; understaffing of the police; language barriers with suspects, which delay the process of statement taking; and the absence of required officers from the Office of the Director of Public Prosecutions and Judiciary, respectively responsible for sanctioning charges and taking a plea. In 2018, the Police demanded that Parliament amend the Constitution and scrap the mandatory 48 hours.[6] They argued that 48 hours are insufficient to conclude a corresponding investigation, especially when it comes to severe crimes such as terrorism and murder.[7] The police further averred that terrorism suspects might need to be held for seven to fourteen days before being produced in court.[8]

In my opinion, the framers of the 1995 Constitution sought to protect suspects from unfair, unwarranted and unusually long periods of detention at the police. Detention beyond the 48 hours, the framers thought, comes with grave risks, including the possibility of suspects being tortured by police officers to confess to crimes they did not commit, as well as mental health issues such as depression and suicidal ideation. I once visited a police station with over 30 suspects in a tiny, dark cell, most of whom had been detained for almost a week. The suspects were angry and frustrated; whenever new suspects were brought into the cell, they would be asked to entertain the older suspects, and failure to do so would invite a beating from the other suspects.

The Ugandan courts have acknowledged abuse of the 48-hour rule. Justice Ralph Ochan stated, “…in the process of producing and presenting suspects in our Courts, the police and the prosecution do violate numerous constitutional rights of accused persons, yet even where such violations are brought to the notice of Courts, the prosecution goes ahead as if nothing has gone amiss.[9]What then are the solutions to help reduce or end the abuse of the 48-hour rule? 

As upholders of the 48-hour rule, the police should be brought up to speed with the operationalization of Article 23 (4b) of the 1995 Constitution of Uganda. This should go beyond police training school; the police should continuously be trained to uphold constitutional provisions and respect fundamental human rights. At all costs, action should be taken for those who violate the 48-hour rule.  

Under the guidance of Resident State Attorneys (RSAs), proper and expeditious investigations by the police should be paramount even before an arrest is made. Investigations are crucial in prosecuting cases, and if appropriately conducted, support the conviction of offenders and could prevent errors such as the arrest of a wrong suspect. Substantial evidence makes it easier for the RSA to sanction police files, thus enabling the police to produce suspects to court within 48 hours. Completing investigations is neither an excuse for the detention of a suspect beyond 48 hours nor a prerequisite for arraignment in court. Investigations can still be carried out while a suspect is out on police bond or has been remanded to prison.

Additionally, proper investigations must be supplemented, in line with an agenda of decentralization, with the establishment of well-equipped government laboratories with appropriate staff in different regions and districts. These are critical for speedier conduct of investigations. At present, police from all districts do send investigative samples to the sole government analytical laboratory in Kampala, thereby overwhelming the staff there and inevitably slowing down investigations.

Where there is nothing compelling the police to continue detaining the suspect(s), the police should exercise their mandate to grant police bond with reasonable conditions before the 48-hour timeframe elapses. Equally, the grant of police bond should be exercised in the event of little or no possibility of the suspect(s) being brought before a court in 48 hours. Even in cases of preventive arrest, wherein it is pretty much impracticable to carry out investigations before the arrest has been effected, the same logic should apply. Most times, however, the police grant bond after the 48 hours have elapsed. This should not be the case!

Government should prioritize the increase in the number of police officers within various police posts and police stations. More often than not, police officers are stretched thin and have to handle multiple and divergent cases. Increment in the number and quality of police officers will undoubtedly speed up investigations, thus enabling them to produce suspects to court within 48 hours.

Police posts and stations, especially those in refugee-hosting districts, should have community interpreters stationed at the police stations to aid in communication with suspects who are refugees. This will enable police officers to quickly record their statements and proceed with their release on bond, or their arraignment in court.

In contradistinction to severe criminal cases, the police should embrace alternative dispute resolution (ADR) mechanisms such as mediation for minor cases. This would help a great deal in circumventing the detention of suspects involved in minor cases beyond the 48 hours. Not all cases, after all, need to end up in court; minor cases can be resolved through ADR. I once represented a client whose wife reported a case of domestic violence to the police, and this led to her husband being remanded to prison for over two months. Life became so difficult with the absence of the breadwinner that she requested the court to release her husband. Had the matter been resolved through ADR at the police level, perhaps the husband would not have ended up in prison.

Resident State Attorneys are vital players in observance (or the lack thereof) of the 48-hour rule. Therefore, they should be duly sensitized on the operationalization of the constitutional provision on the 48-hour rule. Having at least two RSAs on standby at their duty stations would go a long way in ensuring that the 48-hour detention rule observance is guaranteed. For, in the performance of their duty, RSAs can and indeed should direct police to release suspects where evidence is insufficient. They can do so by not sanctioning such police files.

Lastly, as an organ of the state, the judiciary occupies pride of place in ending abuse of the 48-hour detention rule.  It needs to be duly sensitized about the optimal operationalization of Article 23 (4b) of the Constitution of Uganda. That judicial officers (magistrates and judges in particular) should regularly be at their duty stations cannot be overemphasized as an essential prerequisite for the rendering of justice. Having at least two such judicial officers at the district level would go another long way to guarantee enjoyment of the 48-hour detention rule. In a similar vein, the judiciary should also consider special arrangements where courts sit over weekends, public holidays, or during periods of a strike, given that for a great many suspects the 48 hours elapse in the course of such non-working days.

Furthermore, judicial officers should pronounce gallant orders like nullification of trials tainted with human rights violations, including abuse of the 48-hour rule and, subsequently, acquit the accused persons. Justice Ochan again had this to say: “…. we think it is high time the judiciary reclaimed its mantle and applied the law to protect our people's fundamental rights and freedoms as the Constitution requires. We cannot stand by and watch prosecutions mounted and conducted amid such flagrant, egregious and mala fide violations of the Constitution. We must act to protect the petitioners' constitutional rights in particular and the citizens of Uganda in general, and the rule of law in Uganda by ordering all the tainted proceedings against the petitioners to stop immediately and directing the respective Courts to discharge the petitioners.[10]

To conclude, the production of a suspect in court within 48 hours of arrest is a constitutional right that should be observed at all times. For this to happen, the different stakeholders should play their roles. To begin with, the police should draft the minimal paperwork like the charge sheet, with a strict record of the date and hour when a suspect was arrested to promptly produce them in court within 48 hours or release the suspect on bond. The RSAs and judicial officers, in the second instance, should readily be available at their duty stations to sanction the charges and take pleas of suspects, respectively. Advocates representing suspects who have been detained beyond 48 hours should, in the final analysis, bring this fact to the court's attention, and the latter should accordingly interpret and apply the law to protect the constitutional right to freedom from arbitrary arrest. Only then will the 48-hour detention rule stand legal scrutiny.

 

The article was written by;

Ayaru Irene Priscilla

Legal Officer, Refugee Law Project

Twitter: @Ayaru_Irene

                                                                                                                                                                                                                                                                                                                     

 

[1] Article 23 (1) of the 1995 Constitution of the Republic of Uganda.

[2] Section 23 of the Police Act Cap 303, as amended.

[3] Article 23(3) of the 1995 Constitution of the Republic of Uganda

[4] Article 23(4b) of the 1995 Constitution of the Republic of Uganda.

[5] Section 24(2b) and Section 25(1) of the Police Act, Cap 303, as amended.

[6] See https://www.parliament.go.ug/news/1450/police-want-48-hour-rule-scrapped  (Viewed on 21st May 2018)

[7] Paul Kiwuuwa, “Police demand the amendment of the 48-hour detention rule” Retrieved online at https://www.newvision.co.ug/new_vision/news/1477851/police-demand-amendment-48-hours-detention-rule (Viewed on 17th May 2018)

[8] Halima Athumani “Police seek to end 48-hour detention rule” Retrieved online at https://www.voanews.com/africa/uganda-police-seek-end-48-hour-detention-rule (Viewed on May 24th, 2018).

[9] Uganda v. Robert Sekabira & 10 others, High Court Criminal Session case no. 0085 of 2010

[10] Uganda v. Robert Sekabira & 10 others, High Court Criminal Session case no. 0085 of 2010

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