The civil division of the High Court, on 17th June 2020, delivered its final ruling in the main application filed by Human Rights Awareness and Promotion Forum (HRAPF) challenging the refusal of by prisons’ authorities to allow the #COSF19 access to their legal representation.
The 19 LGBT youth were arrested on 29th March 2020 from the Children of the Sun shelter in Kyengera and were thereafter charged with doing 'a negligent act likely to spread infection of disease contrary to section 171 of the Penal Code Act, arraigned before the Chief Magistrates Court of Mpigi at Nsangi vide Criminal Case No. 113 of 2020 and remanded to Kitalya Prisons until 28th April 2020.
The 19 accused were then detained for 49 days and refused access to their legal representation. It is upon this background that HRAPF filed an application challenging the Commissioner General of Prions’ decision to deny the accused contact with their lawyers.
In a positive judgement delivered by Justice Micheal Elubu, the Court declared that the refusal tantamounted to a violation of the non derogable right to a fair hearing and the right to liberty. For these violations, the Court awarded 5 million Uganda shillings (about USD 1340) to each of the accused persons and also awarded costs to HRAPF. This now brings a close to the litigation in this case at the High Court.
On Sunday the 29th of March 2020 at about 11am, HRAPF received a call from the Executive Director of Children of COSF requesting HRAPF to respond to a raid by security officials and community leaders at their shelter located in Kyengera, Wakiso district. The HRAPF team composed of a lawyer and Community Paralegal went to the shelter but found that 23 persons had been arrested and taken to Nkokonjeru Police Post.
There was one Local Defence Unit member who informed the two that he had instructions to arrest anyone who came to the shelter, and as such he put the lawyer and Community Paralegal under formal arrest. After about one hour, the two were also taken to Nkokonjeru Police Post, where the Officer in Charge released them since the he knew them to be HRAPF lawyers. At the station, they met their clients who had been arrested. Information gathered shows that the community members in the area and the leadership were worried about the ‘homosexual’ behavior of the youths who they believed to be a bad influence in the area.
They involved the Mayor of Nsangi Municipality, Hajj Abdul Kiyimba who stated that such behavior could not be tolerated in the area. He led the team that raided the shelter, assisted by members of the Local Defence Unit and the Uganda Peoples Defence Forces (UPDF). The mayor personally beat up at least two of those arrested as he questioned them about their homosexuality. After being questioned, the group was detained at Nkokonjeru Police Post. While at the station, a crowd continued to gather, some of whom even threatened the HRAPF lawyers. A search was conducted in the shelter in order to find evidence of ‘homosexuality.’ Some of the items recovered and kept as evidence included several bottles of an Anti-Retroviral Drug regimen commonly used as Pre-Exposure Prophylaxis, two oral HIV self-testing kits, several condoms in their foil packs and several pieces of condoms that the residents in the shelter had blown up.
The total number of persons arrested was 23. These included a nurse from the COSF community clinic and the Executive Director of COSF. The others were all residents of the shelter. The shelter housed homeless LGBT youths. Among those arrested, three were released on police bond, one of whom was the nurse and the other two for medical reasons.
Statements were taken from the arrested persons. The Police first considered charging them with having carnal knowledge against the order of nature under section 145 of the Penal Code, but this was later changed to doing ‘a negligent act likely to spread infection of disease’ contrary to Section 171 of the Penal Code Act, and ‘disobedience of lawful orders’ under section 117 of the Penal Code Act. This was in the context of the Presidential Directives on COVID-19 which incidentally require people to stay indoors, the exact thing that the people at the shelter were doing.
Appearance before court
The 20 were arraigned before the Chief Magistrates Court of Nsangi and remanded to Kabasanda Prison until 29th April 2020, when they will appear back in Court.
Human Rights Violations involved
Article 23(1) of the Constitution, the right to liberty can only be limited in the case of a few exceptions including ‘for the purpose of bringing that person before a court in execution of an order of a court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence’. In this case, the arrested persons were suspected of being ‘homosexuals’ but were instead charged with offences related to violating the Presidential directives on COVID-19. These directives however, did not limit the number of people who stayed in a house provided they stayed at home. The charges were therefore unfounded.
At least two of those arrested were also subjected to beatings, which action contravenes article 24 of the Constitution, which protects from torture, inhuman and degrading treatment.