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DUE PROCESS: THE LEGALITY OF THE MODE OF CONDUCTING INVESTIGATIONS IN UGANDA TODAY
By Evelyne Naikoba | 04 November 2019
Due process refers to the legal requirement that the State must respect all legal rights of a person. It deals with administration of justice espousing the principle of legal fairness or fair treatment throughout government proceedings and the judicial system, especially a citizen’s entitlement to notice of a charge and a hearing before an impartial judge both in criminal and civil matters. In addition to fair treatment, the principle prescribes a procedural system based on established rules and principles that must be followed by government officials or institutions while processing an individual through a legal system in the case of a criminal or civil matter. It guards against the arbitrary denial of life, liberty or property by the government outside the sanction of the law; basically balancing the power of law of the land while protecting the individual from it (https://en.m.wikipedia.org/wiki/Due_process ).
This principle is engendered by international legal standards including the Universal Declaration of Human Rights (Article 10) the International Covenant on Civil and Political Rights (Article 14 (1)), the African Charter on Human and People’s Rights (Article 7(1), and the United Nations Human Rights Standards and Practice for the Police (2004) among others, as well as the Bill of Rights in the 1995 Constitution of the Republic of Uganda under Article 28. Additional instruments and guidelines include the Police Act, the Magistrates Court Act and the Uganda Police Standing Orders (7th Edition 1984) (Crime and the CID).
For purposes of this discussion particular focus will be placed on some aspects of the initial part of due process namely; the pre-arrest criminal investigation process in Uganda with particular reference to the Uganda Police Standing Orders (Crime and the CID). We seek to examine these Standing Orders to establish whether criminal investigations are at all times conducted in accordance with the prescribed standards and whether these standards are applied to the letter when processing suspects.
To investigate means to look into or conduct an inquiry or to inquire into a matter systematically in order to make a suspect the subject of a criminal inquiry or trial. Overall, the investigation process is a progression of activities or steps moving from evidence gathering tasks, to information analysis, theory development and validation, to forming a reasonable ground to believe, and finally to the arrest and charge of a suspect (https://pressbooks.bccapus.ca/…/chapter-4-the-process…/ ). The pre-arrest investigation is the stage of criminal procedure that ensues after a complaint or report of suspected criminal activity has been made or when the law enforcement agency (the Police) otherwise becomes aware of such activity, but before an arrest is made. The law enforcement agency then investigates to establish whether a crime has occurred and whether an arrest should be made. If the agency determines that the evidence uncovered during the pre-arrest investigation reveals that a crime has been committed and a suspect is identified, the agency may arrest or depending on the jurisdiction of the crime, present the investigation results to the Director of Public Prosecutions (DPP). If the jurisdiction is one which involves the DPP prior to arrest, the DPP may decide whether to and what charges to file or sanction. Only after such determination does an arrest take place. Alternatively, after an investigation, the law enforcement agency may determine that there is insufficient evidence to pursue the matter, and no arrest is made.
The above mentioned Standing Orders prescribe general directions on handling of suspects in the initial stage of an investigation as follows:
Paragraph 5 of the Standing Orders provides for the need to apply for an arrest warrant even when the police have powers of arrest without a warrant. A warrant is advisable when in doubt of the guilty party or on suspicion that the intention of the aggrieved party is to recover property rather than to enforce the law. It further states that in some cases summons will suffice where the suspected offender has a known fixed address and is unlikely to abscond or where there are no special circumstances such as a breach of peace.
Paragraph 12 stipulates that the Police have, within certain limits the power to interrogate suspects and the statements made in response to such interrogation are admissible in evidence, but have no power to interrogate a person who has been arrested. It further provides that it is more practical to treat persons as suspects (which they really are) and not arrest them as opposed to arresting and charging them before the evidence against them is sufficient to establish a prima facie case, in the hope that additional evidence will be uncovered after their arrest or that the prisoner will make incriminating admissions when formally charged. The question then arises as to whether this is the very practice the Uganda police have adopted at all times? More often than not, suspects are interrogated after arrest. Paragraph 13 further provides that a formal charge must never be preferred until it has been determined that the evidence obtained is sufficient to warrant prosecution. A formal charge should only be made before one is arraigned in court to indicate that he will be answerable to a Court of Law and stating the precise offence with which he is being charged. There are however many and repeated cases of suspects who have been formally charged (especially for politically motivated reasons or for exercising their freedom of expression) and detained over and beyond the 48 hour rule at the behest of individuals among the powers that be; with no recourse or compensation. A case in point was that of the Watchman – Joseph Kabuleta who was arrested, detained for over 72 hours and formally charged pending conclusion of investigations and never arraigned before Court.
In some cases the Police have more or less gone on a fishing expedition, where they are not clear about the offence to interrogate one about or charge them with — simply because they are acting on “orders from above”. It is clear in such circumstances that the investigation is not being conducted in light of the extent of the summons. Additionally, if a suspect states that he or she has been mistaken for another person, should the Police adamantly continue to insist on inconveniencing the said suspect? Shouldn’t they instead continue with their investigations using all resources at their disposal to zero in on the actual suspect? The United Nations Human Rights Standards and Practice for the Police clearly state that investigatory activities shall be conducted only lawfully and with due cause.Additionally, the Constitutional Court in the case of Olara Otunnu V.Attorney General (Constitutional Petition No.12 of 2010)(2019)UGCC 3 (18th April 2019) ruled that ;”The police has a duty to investigate crime,coming up with evidence that points to suspects and not just suspect persons and proceed to extract information from them in hope that they will incriminate themselves.The assumption by police that a person summoned may have any documents or information maybe baseless,false or unjustified.”
With respect to questioning prisoners, suspects and other persons, the Standing orders under Para 20 require a police officer to caution a person he intends to charge with an offence before questioning him. This caution should be administered by inquiring whether the prisoner wishes to say anything in answer to the charge and by emphasizing that he is not obliged to say anything and that whatever he says will be recorded and may be given in evidence. Care should however be taken not to scare an innocent person from making a statement which might assist to clear him of a charge. Persons in custody must be cautioned at all times before being questioned, even when they wish to volunteer a statement; in which case they must not be cross-examined or questioned further except in seeking clarification on what they have stated. Is this the standard procedure the police has applied with all suspects and accused persons?
In conducting their duties relating to questioning suspects and others as the need may arise, Para 22 states that the police must at all times exercise fairness to those they are questioning and must be frank in giving evidence to the Court with respect to the circumstances in which the statement was made or taken down in writing; with the final decision being for the Court to determine whether the evidence adduced is admissible or not. This fosters the constitutional requirement for fairness to all persons when interfacing with the law. Nevertheless, there have been cases where suspects have been interrogated with the sole intention of pinning them to a crime; not to mention police officers oscillating between possible charges, some of which are not even provided for in the law– on orders from above.
In recording statements by accused persons or suspects, it is prescribed that the statements be taken down nearly as possible in the very words of the interviewee and in the event that one voluntarily gives himself up for a crime, it should be taken down at once with questions to elicit the facts, and his signature appended and attested to (Para 25). Under Paragraph 28 oral /statements made by an accused person (who speaks another language other than the official language of business) must be done through an interpreter and can only be admissible as evidence, if such evidence is given by the interpreter. Additionally the interviewing officer should ensure that this interpreter is available if required to give evidence and that the latter takes his/her own notes of the interview for use in the event that he/she is called upon to give evidence and if he/she does not take notes, initial the record of the interview. Further guidance is provided under paragraph 30 entailing notes on the Evidence (Statements to Police) Rules 1961 that may be of assistance concerning recording of a statement given by an accused person or suspect in the language it is given and an official English translation made and approved as an exhibit with the original statement. And should the interviewing officer not be literate in the language used by the accused or suspect, the interpreter should take down the statement in the same language and at suitable intervals give an oral translation to the officer who then should take the statement down in the language in which it is translated and thereafter both statements should be tendered as evidence. Copies of statements by accused persons must also be availed to the defence as a matter of urgency (Para 38).
Before one can be charged for an offence, there is an option for caution. Paragraph 29 speaks to the Evidence (Statements to Police) Rules of 1961 which govern questioning by police officers and which are made under Section 24 of the Evidence Act. Rule 7 of these Rules provides for cautioning of prisoners and offers no guidance as to when a caution should be administered to persons who are not in custody, or as to the procedure to be followed when two or more persons charged with the same offence make their statements separately. Is this option to caution option always exercised or are the Police so inclined to charging some suspects; some of whom are victims of mistaken identity. Shouldn’t the proper suspects and evidence be established first before a charge can be issued?
The Police is required to ensure due care in dispatching information received and to exercise confidentiality with information received under Para 52A of the Standing Orders. The Police are precluded from supplying information to the Press about any crime or suspected crime reported to the police. Any requests for information are to be referred to the Office of the Senior Assistant Commission (CID). Various instances are provided for under this directive for withholding information about a crime and investigations thereof from the Press but particular reference is made to Para 52A (6) where a member of the Police Force divulges information to the Press despite a request by a suspect and those involved not to. Be that as it may, despite this preclusion the Police have on some occasions released information to the Press shortly after initial interview of suspects even after requests by suspects or their representatives not to; thereby occassioning unlawful damage to one’s reputation by the Press. The Standing Orders highlight this as an offence against discipline but is there a remedy for this breach of confidence for those affected? Is this remedy sufficient? The United Nations Human Rights Standards and Practice for the Police also stipulate that no one shall be subjected to unlawful attacks on his/her honour or reputation.
A lot of injustices go unnoticed when dealing with the Uganda Police Force today, particularly owing to the fact that many citizens are ignorant of their rights during the entire criminal investigations process; not to mention gripped by fear of the unknown as they face the law enforcement agency. The environment in nearly all police stations is rather appalling and unsettling and speaks of bondage even to persons who are not the subject of crime. The Police officers have been mistakenly conditioned to assume a rough demeanor as opposed to professionalism in service delivery. Any suspect is deemed guilty on sight and the ensuing treatment is very telling of this demeanor that the Police have assumed over time. It is therefore likely that many have out of fear spoken out of turn in recording their statements and ended up at the short end of justice. It is proposed that a behavioural change be considered by the Uganda Police Force even when dealing with hardcore criminals. It is possible to be highly professional in conducting their duties and yet remain mindful of the rights of suspects and accused persons. Whereas it has generally been accepted that the police are unpleasant to interface with, this is not the standard they have been called to.
The United Nations Human Rights Standards and Practice for the Police expressly state that law enforcement officials shall at all times respect and obey the law and shall at all times fulfill the duty imposed on them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. That they shall respect and protect human dignity and maintain and uphold the human rights of all persons. They are in fact charged with the responsibility to report any violations in this respect. These standards also highlight the right to fair trial and the presumption of innocence until proven guilty in a fair trial.