‘Where Do We UGANDA: Go for Justice?’

The Abuse of the Rights of Sexual Minorities in Uganda’s Criminal Justice System PHOTO CREDITS: Rebecca Vassie TABLE OF CONTENTS

Part I: Introduction • Introduction 2 • Key Recommendations 3 • Methodology 3

Part II: Context • Background to the report 5 • Continued criminalization of same sex conduct 6 • Vitriolic rhetoric of government offcials 6 • Increased number of LGBTI feeing the country 7 • Understanding a criminal case fow in the criminal justice system 8

Part III: Grave Violations within the criminal justice system • Intrusive non-consensual and inhumane anal examinations 10 • Inhumane medical examinations without prior counseling and consent 15 • Refusal to investigate cases reported by persons of different sexual orientation and gender 20 identity • In-cell abuse of sexual minorities 22 • Media parading of LGBTI victims in the face of increased risks in the society 25 • Diffculty to access court bail and police bond 28 • Use of criminal charges for extortions and blackmail 30 • Arbitrary arrests and prolonged detention 32 • Institutionalized homophobia in the criminal justice system 36 • Unfair trials of sexual minorities 40

Part IV: International, regional and national law standards • General State obligations 42 • Sexual Orientation as a basis for non-discrimination 42 • National Standard 43 • African Commission for Human & Peoples’ Rights Resolution on non-discrimination 43 • Standard for medical practitioners 43 • Standard for law enforcement offcers 44

Part V: General Recommendations 45 • To the Uganda Police 46 • To the Directorate of Public Prosecutions 46 • To the Courts of Judicature 46 • To the media 46 • To the Civil Society Organizations 46 2 UGANDA: ‘Where Do We Go for Justice?’

PART I Introduction

There have been many reports about the This report seeks to go behind the arrests abuse of fundamental rights and freedom and long pre-trial detention to examine the of sexual minorities in Uganda. What treatment of sexual minorities within the then is the purpose of this report? Is it just criminal justice system and examine the another report in the long list of reports on experiences of victims in the criminal justice this very sensitive issue in Uganda? Two system. The report seeks to vividly highlight things have made it necessary to conduct the treatment of sexual minorities in the this research and write this report. The frst criminal justice system. It also highlights the is that all previous reports document cases response of the criminal justice system to of abuse of sexual minorities and provide reported cases of criminality against sexual useful statistics. The Civil Society Coalition minorities. on Human Rights and Constitutional Law (CSCHRCL) for instance, in a report titled Secondly, the timing of this report is Uganda Report of Violations Based on Sex important. After the annulment of the Determination, Gender Identity and Sexual Anti-Homosexuality Act (AHA) by the Orientation document instances of arbitrary Constitutional Court, an attempt was arrests, long pre-trial detention, evictions by made to force a re-tabling of a new law on landlords, limited access to health services homosexuality. Shortly after the annulment, among others. two Members of Parliament; Hon. David Bahati and Hon Hudson Obua, sought, and Sexual Minorities Uganda (SMUG) in its were granted leave to table another law on report From Torment to Tyranny, enhanced homosexuality. Persecution in Uganda Following the Passage of the Anti-homosexuality Act, 2014 The MPs went into overdrive collecting covering the period December 20, 2013 signatures from other MPs to petition the to May 1, 2014 chronicles the intensity of Speaker of Parliament to reintroduce a violations that were sparked off as a result new law. Several MPs from across the of the enactment of the law. The report political divide found a convergence in an provides statistical data on the number of attempt to table a new law. The ruling party cases reported and the nature of violations. subsequently set up a committee to review It put the number of reported cases over the the pleadings in the AHA petition, the ruling period at 162 cases ranging from physical of the court and concerns raised. In a leaked violence, kidnap, arrests, and blackmail to bill named The Prohibition of Unnatural press intrusion. Sexual Offences Bill 2014, the ruling party committee proposes a more extreme bill than There have also been other reports by the AHA, in terms of its provision. Amnesty International that documented increased homophobia and the use of the There is a possibility that this leaked draft law to restrict the space for assembly and bill will be tabled for enactment in the association especially for sexual minorities. remaining tenure of this parliament. This UGANDA: ‘Where Do We Go for Justice?’ 3

report is an attempt to provide some context investigated and prosecuted into the implications of such a law especially • Stop parading arrested suspects to the on access to justice and the impact within the media; particularly LGBTI individuals criminal justice system on sexual minorities. who face increased violence as a result of such parade. The report thus provides real-life experiences • Guarantee sexual minorities right of sexual minorities in the criminal justice to privacy and confdentiality while system in Uganda. It is impossible to reporting abuses to the police. Their stop that which is unseen. When we fail sexual orientation per se must not be a to acknowledge the existence of sexual crime. minorities, transgender people, and intersex • Institute an investigation into assaults of people, their oppression, whether within sexual minorities suspects on the basis the criminal justice system or elsewhere, of their sexual orientation by the police remains invisible. In documenting these offcers at police stations and make such lived experiences of sexual minorities in the report public. criminal justice system in Uganda, Chapter • Discipline and refer for criminal Four Uganda seeks to garner recognition that prosecution police offcers who engage in the violence experienced by LGBTI people is assaulting of LGBTI suspects and other real and distinct. forms of homophobic treatment while at police installations. Key Recommendations • Investigate and discipline offcers engaging in the abuse of the criminal To the Uganda Police justice process to blackmail and extort money and property from sexual • Immediately cease the use of intrusive, minorities. non-consensual, inhumane and degrading • Train offcers handling LGBTI anal/rectum examinations of persons of related cases on the principle of non- different sexual orientation and gender discrimination on the basis of sexual identity as a means of investigations. orientation and gender identity. • Provide counseling services and obtain patient consent prior to the conduct Methodology of medical procedures during the investigation of alleged crimes. This report is based on information gathered • Immediately issue practice directives for by Chapter Four Uganda between the months the conduct of investigations of sexual of December 2014 and February 2015 in offences to ensure the observance of the districts of Buikwe (Lugazi township), fundamental rights of both victims and Entebbe, Kampala and Mbarara. Chapter suspects. Four relied on secondary and primary • Urgently investigate all allegations of sources obtained in the research period. The refusal/disregard to investigate cases report focuses on the real life experiences reported by persons of different sexual of individuals, who have gone through the orientations and gender identity to the criminal justice system on accusation of police and ensure that such cases are duly homosexuality. 4 UGANDA: ‘Where Do We Go for Justice?’

The report focuses on the experiences of participated in the research and were criminal justice actors; people who on a informed that the interviews were purposely day to day basis conduct investigations, for research that would lead to the writing hear cases, examine victims and suspects and publication of this report. and lawyers who defend or prosecute cases related to sexual minorities. Chapter Four Uganda interviewed two (2) medical doctors who routinely conduct Chapter Four Uganda traced, obtained and medical examinations on suspects and reviewed volumes of documents including victims in homosexuality related cases. police statements, police fles, court fles, These doctors, by their own admission, charge sheets, medical examination reports, have between themselves conducted more and media reports relating to sexual than twenty-fve (25) medical examinations minorities between the years 2012-2015. on cases related to homosexuality. Also In all, 14 police fles and 10 court fles interviewed were twelve (12) police offcers, were obtained. In all, these fles contained and eleven (11) activists working with hundreds of pages of witnesses and suspect non-governmental organizations (NGOs) statements, taken at various police stations, dedicated to supporting sexual minorities. medical reports from the police doctors and other private medical facilities authorized by Chapter Four Uganda sent letters to the the police to carry out medical examinations Inspector General of Police (IGP) and the as part of the formal investigations. The case Director of Public Prosecutions (DPP) fles were corroborated with interviews with requesting for information and clarifcations victims, lawyers, medical practitioners and in relation to violations documented in the police offcers that handled the cases. this report. The DPP offered a reply and These fles are on record at Chapter Four corresponded with Chapter Four Uganda on Uganda. two occasions while the IGP did not respond to the letter at the time of compilation of the Chapter Four Uganda carried out one-on-one report. The Police Command Unit (PCU) interviews with 21 individuals who were however, received a copy of the letter arrested by the authorities on allegations addressed to the IGP and committed to of homosexuality. These interviews were follow up the concerns raised in this report. conducted in-person, via telephone, email, or via Skype. The identities of the individuals The report also benefted from secondary interviewed have been replaced with data collected by the Civil Society Coalition pseudonyms for their own safety, except on Human Rights and Constitutional Law for those who agreed for their names to and compiled in a report titled Uganda be mentioned in the report. The case fle Report of Violations, based on Sexual numbers have been cited in full as indicated Determination, Gender Identity and Sexual in the court records or on the police fles for Orientation dated October 2014; two reports ease of reference. compiled by Sexual Minorities Uganda (SMUG) and other related human rights No incentives were offered for the reports. interviews. The respondents voluntarily UGANDA: ‘Where Do We Go for Justice?’ 5

PART II Context

“Whether there is a law or no law, the The court missed the opportunity to settle discrimination of persons with different these questions and bring to a close in sexual orientation and gender identity Uganda, the debate on discrimination on the continues unabated in the Ugandan basis of sexual orientation. society. The narrative that describes persons of different sexual orientation The ruling of the court was nonetheless as evil and child predatory is being signifcant in many ways. First, several preached in churches, mosques and in individuals and organizations that were under the community everyday putting the investigations or arrests for offences under lives of many in danger…” the AHA such as promoting homosexuality received temporary reprieve as the basis for Ms. Clare Byarugaba, former co- their investigations were rendered a nullity2. coordinator of the Civil Society Coalition on Human Rights and A case in point is the Walter Reed Project Constitutional Law1 of the School of Public Health Makerere University. The police on August 4, 2014 Background to the report raided the Nakasero based project, arresting two staff members on allegations of 3 In August of 2014, the Constitutional Court recruiting the youth into homosexuality . nullifed the Anti-homosexuality Act, 2014 Although the two personnel arrested (AHA) for having been passed in violation were released without charge, the police of the rules of procedure of parliament. The interrogated several board members of the court found that the law was passed without project and no charges have since been the requisite Coram of two thirds required to brought against them. enact legislation. Secondly, the nullifcation of the AHA The ruling of the court did not delve halted a dangerous precedent from being into the substantive challenges to the concretized in a law. Anti-homosexuality Act contained 2 In fact, no known prosecution was ever commenced under the in the main body of the petition. The AHA even though many of the arrests were done under the pretext of the court did not pronounce itself on the law after it was passed. All the cases recorded at police and in court were prosecuted under the provisions of the Penal Code Act. They were either issues of discrimination on the basis of terms as sodomy, acts of gross indecency or having carnal knowledge of a person against the order of nature. See Promoting ‘Morals’ by sexual orientation, the broad defnition Dehumanizing Suspected LGBTI Persons? A critique of the enforcement contained in the law such as ‘recruitment of the Law Criminalizing Same Sex Conduct in Uganda, HRAF and CSCHRCL, October 2013 (available at http://www.hrapf.org/sites/ into homosexuality’ and ‘promotion of default/fles/publications/section_145_research_report_full_version.pdf homosexuality,’ among others. accessed on February 16, 2015) 3 A police fle General Enquiries File (GEF): 51/14 was opened March 15,2014 based on ‘intelligence information.’ An initial report obtained by Chapter Four Uganda prepared on March 8,2015 by No. 25809 D/Sgt. Miftundinda Edward addressed to the IGP concluded that ‘the US Government is sponsoring the research on HIV, Makerere University Walter Reed Project, which is also recruiting homosexuals.’ 1 Chapter Four Uganda interview with Clare Byarugaba, The report further concluded that ‘there was recruitment of youths ageing Kampala, February 2nd, 2015 between 15-25 years of male only (sic)’ 6 UGANDA: ‘Where Do We Go for Justice?’

It forced a deeper refection among the Continued criminalization of same sex political leadership and the general public conduct on the unintended consequences of such Same sex “relations” still remain outlawed legislation on access to public health, in Uganda. Article 31 of the constitution economic development and inclusiveness. prohibits same sex marriages. Arrests At the very least, the legislators will pay of sexual minorities or suspected sexual attention to the issues raised in the petition, minorities continues to rise due to the judgment of the court and the debate that continued use of Uganda’s Penal Code Act ensued post enactment. Cap 120 enacted in 1950, a piece of colonial legislation that has been maintained as a part The above notwithstanding, the nullifcation of Ugandan law. Some provisions of this of the AHA has not resolved the deeper colonial rulebook are now the “primary tool” societal concerns about discrimination, for the harassment of sexual minorities. violence and all forms of abuse towards sexual minorities. Reports indicate increased For example, Section 145 of this Penal Code cases of persecution of sexual minorities. title “Unnatural offences” provides for Sexual Minorities Uganda (SMUG) in its life imprisonment of persons found guilty report From Torment to Tyranny, enhanced of “having or permitting a male person to Persecution in Uganda Following the have carnal knowledge with a fellow male Passage of the Anti-homosexuality Act, or female “against the order of nature”. The 2014 reported that between the months of same sentence is prescribed for persons December 20, 2013 and May 1, 2014 ‘there found guilty of having sex with animals. were 162 reported incidences of ‘persecution Section 146 of the same provides for a seven- perpetrated against LGBTI people’4. year jail term for persons found guilty of “attempting” to have carnal knowledge with In the report, the number of cases in 2012 humans or animals. Additionally, Section was 19, and in 2013, 8 cases representing a 148 of the same code provides for a seven- signifcantly low numbering in the previous year jail term for a person who “commits period. Another report conducted between or attempts to procure the commission of the periods of October 2013 and April 2014 any acts of gross indecency” publicly or in registered 153 cases of various forms of private. To date, no prosecution under this violations against sexual minorities5. The law has been successful although it continues statistics in the report, verifed through to be used on sexual minorities. LGBTI networks and legal aid clinics, paint a picture of continued and intensifed Vitriolic rhetoric of government offcials discrimination of sexual minorities in After the Constitutional Court struck down Uganda after the enactment and nullifcation the Anti-homosexuality Act 2014 on August of the AHA. 01st, 2014, the government and anti-gay activists engaged in sensational rhetoric as they came to terms with the ruling of the

4 Sexual Minorities Uganda (SMUG) report From Torment to court. It also presented a moment for a slight Tyranny, enhanced Persecution in Uganda Following the Passage of the change in rhetoric by Uganda’s President Anti-homosexuality Act, 2014 at page.2. Yoweri Museveni. 5 See Uganda Report of Violations Based on Sex Determination, Gender Identity and Sexual Orientation UGANDA: ‘Where Do We Go for Justice?’ 7

In August 12th, 2014, President Museveni “Now that we have the 207 signatures addressed Members of Parliament (MPs) at (of MPs who had informally vowed to State House Entebbe where he signaled a vote for the new anti-gay bill which was major change of rhetoric. While reminding even not yet drafted), the rest (passing them that the anti-gay law was not a of the new anti-gay bill) is going to be ‘priority’ for Uganda’s development, he is smooth” 6 quoted to have observed; Pastor Martin Ssempa reacted by promising “A country which has no vision that, “We (anti-gay movement) want to join punishes a divided house. We need to with the Attorney General to appeal this to work together through consensus and the Supreme Court. This decision is a legal use of collective methods…. This is now travesty. It is an insult to all family-culture- an issue of Semusota guli muntamu loving people in Uganda”7. He questioned (a snake which has entered into a the independence of the judiciary and cooking pot – a local proverb used to wondered why a ‘conservative religious describe a delicate situation which if judge … like Justice Remy Kasule… not carefully handled, would result in (was) not included on the bench’8. Ssempa major catastrophe). If we try to kill further questioned whether there had been the snake, we may break the pot, if we a conspiracy by the government since the don’t, we wont” - President Yoweri President was travelling to Washington Kaguta Museveni DC for the US-Africa Summit. President Museveni denied these allegations in an The President further reportedly complained interview9 with Agence France Press. that his advice on the drafting of the annulled anti-gay law was ignored. As he Increased number of LGBTI feeing the commissioned a 10-member committee country chaired by the Vice President Edward As a result of the continued discrimination, Kiwanuka Sekandi to draft a new anti-gay violence and harassment, LGBTI people bill, he cautioned the committee to ‘study continue to seek refuge out of Uganda. the petition’ which successfully got the anti- Statistics on the numbers seeking asylum is gay law nullifed. scanty but the CSCHRCL reported that in the aftermath of the enactment of the AHA, 25 As the Speaker of Parliament Rebecca cases were registered. Kenya’s National Gay Kadaga and a number of MPs passionately & Lesbian Human Rights Commission also swore to pass the bill when it gets to noted close to 20 cases of Ugandans seeking Parliament, President Museveni cautioned asylum in Kenya. them to debate the law without any emotional feelings. Speaker Rebecca 6 Kadaga Blasts Court on Gay Law, The New Vision August 17, Kadaga, in an extensive interview with 2014 7 Uganda: Ssempa claims governmental conspiracy after the State owned New Vision newspaper, anti-gay law overturned: http://www.pinknews.co.uk/2014/08/04/uganda- lambasted judges of the court over the ssempa-claims-governmental-conspiracy-after-anti-gay-law-overturned/ annulment of the AHA and was further 8 Ibid 9 Museveni denies Uganda forced to drop anti-gay law: http:// quoted saying, mg.co.za/article/2014-08-02-museveni-denies-uganda-forced-to-drop- anti-gay-law 8 UGANDA: ‘Where Do We Go for Justice?’

This is a large increase from 2013 where Due to the sensitivity of the circumstances the NGO noticed only fve such cases10. under which these persons fed Uganda, According to an online blog, there were an Chapter Four Uganda resolved not to make estimated 60 members of Uganda’s LGBTI public their identities or the countries they community in refugee camps by 201411. have found peace and comfort in.

Understanding a criminal case fow in the criminal justice system

The mandate of prosecution of all criminal The complainant is then required to read cases is vested in the Director of Public and confrm that what has been recorded Prosecution (DPP) and all criminal cases is accurate. Also complainants are at times are instituted in the name of the State. The asked to provide potential witnesses to DPP supervises over case investigations, and corroborate their cases. The police have the conducts prosecution through Resident State powers to summon anyone for interrogation Attorneys (RSAs). Cases are investigated by to help with investigations into a reported the Uganda Police Force (UPF) through the case. Directorate of Criminal, Investigation and Intelligence Department (CIID). The police also seek medical examinations in cases where it is deemed necessary. These The criminal justice system in Uganda medical examinations are conducted by revolves around the police, the Director of police doctors or private doctors authorized Public Prosecutions (DPP), courts of law, by the police. Medical examinations results and the Uganda Prisons which detains the are recorded in police forms PF 3 or PF 18. accused persons during trial. Once a case has been deemed to be of merit, Any persons with complaints of a criminal the police proceed to seek the accused nature is at liberty to visit any police station persons. It is mandatory that the police to register a complaint and later receive a issue criminal summons in the event that police reference number, often abbreviated potential witnesses or accused persons are as CRB or SD REF. In some instances, the uncooperative. police open a General Enquiry File (GEF) if the reported allegations of criminality are of During investigations, the police can conduct a general nature. Complainants are required searches at the suspects’ houses or work to have their statements recorded with the places in the event that such a search could help of an assigned police offcer. yield evidence.

10 Ibid 11 http://oblogdeeoblogda.me/2014/06/16/ugandan-gays-in- kenya-desperate-sick-and-fear-death/ UGANDA: ‘Where Do We Go for Justice?’ 9

The head investigator then forwards the During the trial, the accused is free to alter complete police fle containing all the his or her plea. The RSA also has the liberty statements and preliminary evidence to amend the charge sheet or enter a nolle obtained to the Resident State Attorney prosequi14 if new evidence surfaces or (RSA)12 for perusal and legal advice. incriminating statements are recanted.

The RSA may then arrive at any of the In the trial, the prosecution adduces evidence following conclusions. it has against the accused in court after which the court rules on whether the accused has 1. Sanction the fle if he or she fnds a prima a case to answer. If the prosecution in the facie case against the accused and order opinion of the court has established no case, that he or she be produced in court at the accused will be set free. However, if the the earliest opportunity to answer to the court fnds incriminating facts against the charges alleged against him or her. accused, he or she will be put on defence. 2. Order the police to close the fle if there is no prima facie13 due to insuffcient Judging on the evidence adduced during the evidence. entire trial, the court will either acquit the 3. The RSA may also direct the police accused or convict him or her and adjourn criminal investigations department to for purposes of passing sentence accordingly. release the accused on police bond and proceed with further investigations. At all times during this case fow within the criminal justice system, the accused has If the RSA prefers the case to court, a a right to bail and several other attendant court case number will be obtained and the fundamental rights such as the right to a accused will then be arraigned before the fair and speedy hearing and freedom from court to take plea. torture, inhumane and degrading treatment while in detention. While before the court, the accused has the option to either take a plea of guilty or a plea of not guilty. If the accused pleads guilty, the court will record such plea and adjourn the case for sentencing. If the accused pleads not guilty, the court will record the same and adjourn the case as his or her trial starts in earnest.

12 Resident State Attorney is a representative of the Director of Public Prosecutions in a respective magisterial area. He or she exercises the powers of a prosecutor in criminal trials. 13 A fact that is presumed to be true on the face of it unless it is 14 A formal notice to court by a prosecutor indicating that rebutted prosecution is abandoning all or part of a case against an accused person 10 UGANDA: ‘Where Do We Go for Justice?’

PART III Grave violations within the criminal justice system

Intrusive non-consensual and inhumane the examination table with one leg up or anal examinations bend over. The medical practitioner is then asked to conduct a “thorough search” of The practice of subjecting suspects and the suspect’s private parts, around the anus victims in homosexuality related offences and testicles area. The medical practitioner to intrusive non-consensual and inhumane is required to forcefully insert his fnger anal examinations is common practice in or fngers into the anus of the suspect, the criminal justice system. It is considered measuring the anal sphincter and checking among practitioners and investigating for the anal tone. This inhumane practice offcers ‘normal and formalistic practice’ in is often characterized by continuous cases involving sexual offences. movements of the doctor’s fngers inside the anus of the suspect. No scientifc means exist The practice as narrated to Chapter Four for this test. Uganda involves identifying the suspects and victims by police offcers who routinely A Medical Clinical Offcer15 working at a take them to a medical doctor, with medical private clinic in Kampala told Chapter Four examination forms, with instructions to have Uganda that he had conducted numerous anal them conduct anal examinations on grounds examinations on suspects brought to him they are either suspects or victims in alleged by the police. He explained to Chapter Four acts of homosexuality. Uganda how he conducts these examinations.

On these instructions, doctors conduct anal/ “I have had several requests to rectum examinations on the patients in conduct medical examinations on the presence of at least one police offcer. people suspected to have been involved These examinations are done without, in homosexuality. It is usually the consent or any form of counseling. It victim of the act and some times, the involves doctors inserting their fngers in suspect as well. We do not ask for their the rectum to determine the circumference consent because they are suspects. In of the rectum and locate any signs of rectum these medical examinations, we have penetration. The doctors then fll the police two types of Uganda Police medical form with their observations. The process is examination forms. The frst is the unscientifc, with some doctors who carry medical examination form of a victim out these kinds of examinations, fnding it of sexual assault (Police Form 3A) and disturbing. the other is the medical examination form of a person accused of sexual In two separate interviews with medical assault (24A).” 16 practitioners who routinely carry out these examinations, they described how the 15 Real names withheld on request of the interviewee for “suspects” are ordered by the police offcers confdentiality and other personal reasons (pseudonym) present to remove all their clothes, lay on 16 Chapter Four Uganda interview with a Medical Clinical Offcer, Kampala (Uganda), January 8th, 2015 UGANDA: ‘Where Do We Go for Justice?’ 11

He further explained to Chapter Four Uganda “When I receive a patient who the examination process. normally comes along with a medical form from police, I frst interview them “After taking the narration, I ask the to take down important background patient to remove all his clothes and information. After the interview, I ask lie naked on a table with one hand the patient to lie down naked with one on the cheek. After this, I ask them leg up and the buttocks are positioned to lift one leg up and keep it there to at the edge of the table he is lying on. allow me space to search his private I then put on gloves, get the light on parts around the testicles and the anus and start inspecting him or her mostly for any signs of sexually transmitted around the anus. If the area around infections (STIs) such as Genital warts the anus is darker or has bruises or and signs of abrasions around the abrasions, then I can conclude that opening of the anus. While the patient there has been penetration of the anus is still lying down on the table, I insert with an external object. I further insert my fngers into his anus to check the one fnger or more into the anus of looseness of the anal sphincter. The the patient to check for the sphincter walls are normally tight and any signs muscles. While the fnger is in, I ask of easy penetration indicate evidence the patient to squeeze the fnger with of previous internal involuntary his/her anal muscles as I try to move penetration by a large object.” 17 it around. Inserting the fngers helps me to check the anal tone and to see Chapter Four Uganda inquired whether if the grip is still there. If my fngers there are scientifc examination procedures move freely then I can say that there conducted to determine anal penetration. He is a poor anal tone. This examination said all the examinations are done by fngers. is completely done by the eyes and the hands.” 19 “Having handled these medical examinations, I still don’t understand Victims of this manual rectum examination why the state should mind what people are left disturbed, mentally tortured and do in their bedrooms. For example, physically assaulted. They are humiliated “does the government know what you and robbed of their dignity. do in your bedroom?”. “You see, those are private things and government In an interview with Chapter Four Uganda, should have no business there”. Jackson Mukasa20 who while in police In my opinion, they should not be detention underwent an anal examination prosecuted.” 18 without his consent narrated how humiliated he was. In a separate interview, a gynecologist at a Government Hospital, told Chapter Four 19 Chapter Four Uganda interview with a Gynecologist (name th Uganda; withheld on request), Kampala (Uganda), January 8 , 2015 20 Jackson Mukasa, aged 19, charged with the offence of ‘permitting a person to have carnal knowledge of a person against the order of nature’ contrary to section 145 (c) of the Penal Code Act Cap Ibid 17 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed 18 Ibid for want of prosecution in October 2014 12 UGANDA: ‘Where Do We Go for Justice?’

“The doctors treated me badly. He asked me to remove my clothes and quickly bend over. He then started pulling my private parts. I felt a lot of pain …… I regret that day. It was a very, very bad day for me” 21

1 2

3 4

21 Chapter Four Uganda interview with Jackson Mukasa, Kampala (Uganda), January 20th, 2015 UGANDA: ‘Where Do We Go for Justice?’ 13

In January 2014, Kim Mukisa22 was also In November 2013, Samuel Ganafa28, a subjected to the same. He narrated how a gay Ugandan man and LGBTI activist doctor ‘fxed’ his ‘fngers’ in his ‘anus’ to was arrested and ordered to undergo anal fnd if he was having anal sex. medical examination. He told Chapter Four Uganda that it was clear no one cared According to records obtained by Chapter about his opinion. His alleged victims were Four Uganda, in the case of Tommy23, a also subjected to the same anal medical gay Ugandan man accused of sodomy, his examinations. alleged victims were subjected to mandatory anal medical examinations in February 2014. In April 2014, Ugandan born American Chapter Four Uganda did not see any record resident Jojo29 was forced into a medical of consent on the fle. In the case of Ahmad examination room ran by a Uganda Police Shabaz24, a Pakistani man, charged with medical doctor. He recounted to Chapter three others of allegedly gang raping and Four Uganda how in the presence of four sodomising a Ugandan female in Kampala, police offcers, one of whom was female, offcial records show two non-consensual he was ordered to strip, kneel on a bed and anal examinations were conducted on the bend-over forward. alleged victim. The doctor then fsted Jojo’s anus repeatedly In the frst, conducted at Mulago National as the police offcers watched, making Referral Hospital, the examining doctor “comments and observations”. Jojo narrated wrote, “Vagina normal, rectal, no how the doctor then pushed inwards and abnormality”25 further adding “there could sideways several of his fngers, claiming to have been anal sex but no trauma seen”26. be measuring his anal sphincter.

On 11th July 2013, police took the same The doctor then ordered him to turn over and victim to Market Street Consultation Clinic, face the roof; with his legs wide open and he a private clinic in downtown Kampala. repeated the same procedure, only this time The doctor at this clinic also noted, ‘anal using metallic objects. One police offcer sphincter has moderate looseness, but still took photographs of Jojo during the entire able to keep tight. No injury noted’27. procedure.

22 Kim Mukisa, aged 24, charged with the ofence of ‘having carnal knowledge of a person against the order of nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in October 2014 23 Real names withheld on request of the interviewee for 28 Samuel Ganafa, aged 54, charged with the offence of ‘having confdentiality and other personal reasons (pseudonym). GEF E/488/2013 carnal knowledge of a person against the order of nature’ contrary to (CIID Police Headquarters). His case is still going on in court. section 145 (a) of the Penal Code Act Cap 120; CRB 145/2013 (Kasangati 24 Ahmad Shabaz, charged with the offence of ‘having carnal Police Station). The case was dismissed in October 8th, 2014 for want of knowledge of a person against the order of nature’ contrary to section prosecution 145 (a) of the Penal Code Act Cap 120; CRB 155/2013 (Kiwatule Police 29 Real names withheld on request of the interviewee for Station); The accused was acquitted by the trial Chief Magistrate at confdentiality and other personal reasons (pseudonym). CRB 585/14; Buganda Road Court in December 2014. SD REF 71/07/4/2014 (Kabalagala Police Station). Jojo was charged with 25 Excerpts from the medical records of the victim in Ahmad’s the offence of sodomy & being in possession of narcotis. The Principal case; CRB 155/2013 (Kiwatule Police Station) State Attorney wrote a letter on May 6th, 2014 under Ref MAK-1693-2014 confrming that the DPP did not fnd suffcient evidence that can sustain 26 Ibid any charge against the suspect. He advised the regional CID Offcer of 27 Ibid Kampala Metropolitan Police-South to close and put away the fle. 14 UGANDA: ‘Where Do We Go for Justice?’

James30, a gay man aged 33 told Chapter an anal examination at a government medical Four Uganda in an interview that after he facility. Their consent was never asked for. was arrested, he was taken to a doctor called ‘Kapingo’ somewhere in Kabalagala, a In November 2014, Bob T.35, the alleged Kampala suburb.He was ordered to strip victim in the case of Kevin Kevin36, was also naked while a police offcer stood at the subjected to an anal medical examination doorway holding a gun. at Mayfair Clinic in Kampala. No record exists to suggest that he consented to the “I was treated like a thief, even worse. examination. The doctor approached me, ordered me to bend over and he checked my private In April 2014, Dickens37, an alleged victim, parts, including my anus with his purportedly sodomised by Jojo38 was taken to hands. I later read in the local tabloid, Muyenga Dispensary for a compulsory anal the Red Pepper that I had tumors in examination. my anus. This is completely false as the doctor confrmed that nothing was This non-consensual, intrusive medical wrong with me. I feel how Red Pepper experimentation of suspects, in detention, treated me was very inhumane.” 31 in the name of ‘investigations’, constitutes an act of torture39 in contravention to the In yet another interview, British national UN Convention Against Torture 40. It further Bernard Randall32, told Chapter Four Uganda amounts to obtaining ‘evidence’ through how a doctor forcefully ‘stuck his fnger’ torture and other illegal procedures and into his anus to check if he had been having such evidence ought not to be admissible anal sex. All this happened as police offcers against the accused in a court of law for stood-by to witness. He said it was painful and very demeaning to him. However, no 35 Real names withheld (pseudonym). He is the victim in the case one cared about what he thought or felt. against Kevin Kevin; SD REF 49/01/11/2014 (Seeta Police Station) 36 Real names withheld (pseudonym). He was charged with the offence of ‘having carnal knowledge of a person against the order of In October 2010, Wilberforce B.33, a gay nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; SD REF 49/01/11/2014 (Seeta Police Station). Kevin is facing sodomy charges Ugandan man aged 30, and his alleged and his case is still ongoing. 34 victim Robert R. , were taken by police 37 Real names withheld (pseudonym). He is the alleged victim offcers from Katwe Police Station to have in the case against Jojo (pseudonym) 38 Real names withheld on request of the interviewee for confdentiality and other personal reasons (pseudonym). CRB 585/14; SD 30 Real names withheld on request of the interviewee (pseudonym) REF 71/07/4/2014 (Kabalagala Police Station). Jojo was charged with the CRB 889/13 (Entebbe Police Station). His case is still ongoing in court. offence of sodomy & being in possession of narcotis. The Principal State Attorney wrote a letter on May 6th, 2014 under Ref MAK-1693-2014 Chapter Four Uganda interview with James (pseudonym), 31 confrming that the DPP did not fnd suffcient evidence that can sustain Kampala (Uganda), February 10th, 2015 any charge against the suspect. He advised the regional CID Offcer of 32 Chapter Four Uganda Skype interview with Bernard Randall, Kampala Metropolitan Police-South to close and put away the fle. Kent (UK), February 11th, 2015 (CRB 889/13 & CRB 848/2013 – Entebbe The U.N. Committee Against Torture; in 2002 reviewed the Police Station). He was charged with the offence of traffcking obscene 39 issue of forensic anal examinations; referred to ‘forensic anal examinations’ publications C/s 166(1)(a) of the PCA Cap 120 and sodomy respectively. as a ‘degrading treatment’ The two cases against him were dropped & court ordered that he be deported from Uganda. 40 Article 7 of the ICCPR - “… In particular, no one shall be subjected without his free consent to medical or scientifc Real names withheld on request (pseudonym); SD REF 33 experimentation”. This position is sustained by the UN Committee 02/12/10/2010; CR No. 7183/10 (Katwe Police Station). He was charged Against Torture in 2002 after a review of the issue of forensic anal with the offence of having carnal knowledge of a person against the order examinations (Committee referred to ‘anal examinations’ as ‘degrading of nature. His case was dismissed in July 2011 for lack of prosecution. treatment’ and the UN Special Rapporteur on Torture and Other Cruel, 34 Real names withheld (pseudonym). He is the alleged victim in Inhuman or Degrading Treatment or Punishment; OHCHR Report on the case against Wilberforce B. (pseudonym) Sexual Orientation and Gender Identity UGANDA: ‘Where Do We Go for Justice?’ 15

violating41 basic human rights of the victim. What it in fact achieves is to insidiously The involvement and conduct of medical punish a suspect who is still presumed practitioners in these non-consensual and innocent and add torture to the victim of the intrusive procedures violates fundamental alleged crime. medical professional ethics by illegally ‘applying their knowledge and skills in order Inhumane medical examinations without to assist’ the state obtain ‘evidence’ through prior counseling and consent degrading means. The intrusive mandatory HIV testing that is The Uganda Medical and Dental ‘sanctioned’ by the Penal Code (Amendment) Practitioners Council’s Code of Professional Act, 2009 violates fundamental rights to Ethics42, the World Medical Association the security, privacy, physical and mental and the UN Principles of Medical Ethics health of the person. Although this inhumane Relevant to the Role of Health Personal, medical experiment applies to heterosexuals Particularly Physician43 forbid members of in sexual related offences, UNAIDS and the profession from participating in acts that WHO clarify that there are no exceptions44 violate of human rights. to justify compulsory HIV tests and the procedure in which it is conducted. Research further indicates that this non- consensual anal examination often has no The new HIV and AIDS Prevention and evidential value in court. Apart from the Control Act45, 2014 provides for mandatory fact that most of these examinations are HIV testing for suspects in ‘sexual offences’ conducted after a signifcant time lapse from for purposes of ‘criminal proceedings the time of committal of the alleged offence, and investigations’. It does not mention they cannot, in part for the manner in which the interests of the supposed victim of the they are conducted, establish a causal sexual offence; an argument that is often relation between the suspects and victims. conveniently and albeit, lazily fronted to justify the attendant violations. Most of the cases reviewed in this research were dismissed in courts of law after long The evidence collected during this research periods of trial for ‘lack of evidence’ even in reveals how these inhumane medical cases where ‘positive’ medical results of anal examinations are conducted without any examinations were on record. form of pre or post-test counseling. No effort to secure consent from the patients before these tests are conducted is ever done.

41 April 2011; - The ‘UNHCR’s Comments on the Practice of Phallometry in the Czech Republic to Determine the Credibility of Asylum Claims based on Persecution due to Sexual Orientation’: http://www. unhcr.org/refworld/docid/4daeb07b2.html. 42 See Part II: The Uganda Medical and Dental Practitioners Council’s code of professional ethics - http://www.umdpc.com/uploads/ 44 UNAIDS/WHO, “UNAIDS/WHO Policy Statement on codeofethics.pdf HIV Testing,” June 2004, http://www.who.int/entity/hiv/pub/vct/en/ hivtestingpolicy04.pdf (accessed October 27, 2009) 43 The World Medical Association and the UN Principles of Medical Ethics Relevant to the Role of Health Personal, Particularly 45 The HIV and AIDS Prevention and Control Act, 2014 signed Physicians; Principle No. 4. Link: http://www.un.org/documents/ga/ into law on 31st July 2014. Section 12. - http://www.hivlawandpolicy.org/ res/37/a37r194.htm sites/www.hivlawandpolicy.org/fles/Ugandan-HIV%20Law.pdf 16 UGANDA: ‘Where Do We Go for Justice?’

In an interview with a Gynecologist46 at a In the case of Kim Mukisa49 & Jackson government hospital, the patients taken to Mukasa50, the two recounted to our their facilities by the police are required to researchers in an interview that during have their blood samples taken to facilitate their detention in January 2014, they were an HIV and other STI tests. subjected to the humiliating and intrusive HIV and other STI tests without their In the case of King47, he was subjected to consent. They were never counseled before medical examination without his consent or after the tests. while in police custody shortly after his arrest. According to the records that Chapter Four Uganda obtained in the case of Tommy “During my detention, the police took N.51, a gay man accused of sodomy, he me to Ntungamo Medical Centre for was also subjected to the degrading and medical examination. The medical discriminatory mandatory HIV testing in offcer came to take my blood to test February 2014. No evidence on fle suggests my HIV status & other STI tests and that he consented to the medical examination when I asked him why he had not even or that he was counseled prior to the same counseled me or asked for my consent, being subjected to him. he laughed at me and assured me that police suspects need not give consent In February 2014, Tommy’s alleged victims because it is by force and there is no were also subjected to mandatory HIV status need to counsel me.” 48 medical examinations. Our researcher did not see any record of consent or evidence of King told Chapter Four Uganda that he felt counseling. the medical offcer who attended to him looked at him as an animal when he heard Chapter Four Uganda also conducted an that he was being accused of sodomising interview with Ahmad Shabaz52, a gay man schoolboys. He appeared so judgmental and recently charged with gang-raping and very hostile. sodomising a young lady in Kampala in the company of three of his other co-accused. King’s alleged victims were also medically He said he was subjected to mandatory HIV examined during which their HIV status and other STI tests were conducted. No record 49 Kim Mukisa, aged 24, charged with the offence of ‘having carnal knowledge of a person against the order of nature’ contrary to exists to show that it was consensual. section 145 (a) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in October 2014 50 Jackson Mukasa, aged 19, charged with the offence of ‘permitting a person to have carnal knowledge of a person against the order of nature’ contrary to section 145 (c) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in October 2014 Chapter Four Uganda interview with a Gynecologist (name 46 Real names withheld on request of the interviewee for withheld on request), Kampala (Uganda), January 8th, 2015 51 confdentiality and other personal reasons (pseudonym). GEF E/488/2013 47 King Byabagye Wenceslaus; charged with the offence of (CIID Police Headquarters). His case is still going on in court. sodomy under CRB 2354/13. GEF 17/2013. The case was still pending at Ahmad Shabaz, charged with the offence of ‘having carnal police at the time of publication of this report. The suspect continues to 52 knowledge of a person against the order of nature’ contrary to section report on police bond. 145 (a) of the Penal Code Act Cap 120; CRB 155/2013 (Kiwatule Police 48 Chapter Four Uganda interview with Byabagye King Station); The accused was acquitted by the trial Chief Magistrate at Wenceslaus, Kampala (Uganda), January 19, 2015 Buganda Road Court in December 2014. UGANDA: ‘Where Do We Go for Justice?’ 17

testing three times while in police custody. narrated to Chapter Four Uganda how the Because of the homophobia he faced as a doctor forcefully took his blood sample result of his orientation and the sodomy in the presence of the police without his charges he faced, he said that the police consent. His HIV test was conducted and no authorities and medical offcers did not counseling was ever offered to him. believe the results of lab tests. He told our researcher that they had to do it three times In October 2010, Wilberforce B.57, a gay man instead of once to believe it. aged 30, was taken to Muyenga Dispensary Laboratory and police offcers from Katwe In October 2013, Ahmad’s co-accused Police Station ordered the medical offcer Mohammad Waqas53 was also subjected to a to run his HIV blood test. According to the mandatory HIV/STI tests. records obtained by Chapter Four Uganda, the clinical notes of Wilberforce had the The victim in this case was also subjected writing, ‘homosexuality’. His alleged victim, to repeated HIV tests in July 2013 and no Robert R.58, was also subjected to the same record on fle suggests that there was consent mandatory HIV test. No records on fle or counseling during these intrusive medical as well suggest that he consented to this examinations. intrusive medical test.

In November 2013, Samuel Ganafa54, a gay In November 2014, Kevin Kevin59, aged man and LGBT activist was arrested and his 18, was arrested and taken to a hospital to blood samples were also forcefully taken to have his HIV status checked without his facilitate his HIV/STI tests. He received no consent. The ‘sperms’ allegedly recovered counseling services prior or after the tests. on the clothes of the alleged victim were also He told our researcher that it was clear no collected and subjected to a DNA test. In the one cared about his opinion. His alleged same month, his alleged victim, Bob T.60, victims were also subjected non-consensual was also subjected to an HIV test at Mayfair to HIV tests. Clinic in Kampala. In the familiar pattern, no consent form exists on record. James55, a gay man aged 33 shared with our researcher medical records revealing how The prevalence of non-consensual inhumane he was subjected to mandatory HIV testing. medical examinations specifcally in relation He did not receive any pre or post-test to mandatory HIV and STI tests is a norm counseling and his consent was never sought. as documented in this section in violation 56 In an interview with Bernard Randall , he of codes of medical ethics and acceptable human rights standards. 53 Charge sheet in the case of Ahmad Shabaz & 3 others which Chapter Four Uganda obtained 57 Real names withheld on request (pseudonym) 54 Samuel Ganafa, aged 54, was charged with the offence of ‘having carnal knowledge of a person against the order of nature’ 58 Real names withheld (pseudonym). He is the victim in the contrary to section 145 (a) of the Penal Code Act Cap 120; CRB case against Wilberforce B. (pseudonym) 145/2013 (Kasangati Police Station). The case was dismissed in October Real names withheld (pseudonym). He was charged with the 8th, 2014 for want of prosecution 59 offence of ‘having carnal knowledge of a person against the order of 55 Real names withheld on request of the interviewee nature’ contrary to section 145 (a) of the Penal Code Act Cap 120. Seeta (pseudonym) Police Station. The case is still going on at Mukono Court 56 Chapter Four Uganda Skype interview with Bernard Randall, 60 Real names withheld (pseudonym). He is the victim in the Kent (UK), February 11th, 2015 case against Kevin Kevin 18 UGANDA: ‘Where Do We Go for Justice?’

Statement

1 2 3

4 5 6

7 8 9 UGANDA: ‘Where Do We Go for Justice?’ 19

In this statement recorded on November 4, 2013, Wasswa Ssentamu, who on October 3, 2013 admitted to have robbed Bernard Randall now claims to have been a victim of attempted sodomy by Mr Randall. In the statement, he claims to have met Randall on several occasions and said Randall attempted to lure him with money and promises of work. He also claims Mr Randall admired his muscular body and asked him to have sex with Albert. Please note that in his October 3 statement, Ssentamu said he did not know Mr Randall. He had been told about him by Eric Bugembe and only saw him for the frst time when he attacked him at his Entebbe home.

charge and caution statement

1 2 3

In this charge and caution statement recorded on october 3, 2013 Waswa Ssentamu admits to having been part of the gang of four that robbed Bernard Randall at his Entebbe home. In the statement Ssentamu reveals how the robbery was planned and the items they took.

4 5 20 UGANDA: ‘Where Do We Go for Justice?’

According to the Uganda Medical and Dental It also has to be noted that compulsory HIV Practitioners Council’s Code of Professional medical examination on criminal suspects Ethics61, it is unethical to violate the human does not present any signifcant forensic rights of a patient, even if such violation purpose to the victim or for evidential is being done under the orders of the state. value during trials since it draws no clear It adds that no practitioner shall use his or connection between the parties involved and her professional skills to participate in any the alleged crime. actions that occasion violations of human rights. In defning human rights, the code Similar to the consequences of non- refers to the defnitions set out in Chapter consensual anal examinations, what these Four of the Constitution of the Republic inhumane medical examinations achieve, is of Uganda and espouses the spirit of to insidiously punish a suspect who is still international human rights law (Part II to the presumed innocent and add torture to the code). victim of the alleged crime by subjecting them to discovery. In the Uganda National Policy Guidelines for HIV Counseling and Testing62, it is Refusal to investigate cases reported by postulated that mandatory HIV testing ‘must persons of different sexual orientation and proceed post exposure prophylaxis’ and gender identity adds that, ‘it must be accompanied with appropriate post-test information giving’. The police routinely refuse to investigate In practice, no pre- or post-test counseling cases reported by persons of different is ever given to suspects subjected to sexual orientation and gender identity when mandatory HIV tests. reported. In several cases investigated for this report, the police instead turn against the The lack of counseling services creates persons reporting the cases and charge them room for a wide range of unexpected pitfalls for crimes ranging from indecent exposures, capable of even affecting the victim of sodomy and having sex against order of the alleged crime. For example, instead nature. of protecting the victims, the mandatory examination that is conducted without any The complaints of criminality against form of counseling actually compromises persons of different sexual orientation and them. It exposes them to impromptu gender identity are often ignored and the discovery and a negative HIV result may reported suspects turned into witnesses in erroneously make one to decline HIV post- charges against persons of different sexual exposure prophylaxis (PEP) yet perhaps it orientation and gender identity for their own was a false negative. sexuality and gender identity. In some cases, they are attacked and assaulted by the police to whom they have run for protection.

61 The Uganda Medical and Dental Practitioners Council’s code Kim Mukisa told Chapter Four Uganda that of professional ethics - http://www.umdpc.com/uploads/codeofethics.pdf after running away from a mob that wanted 62 Uganda National Policy Guidelines for HIV Counseling and Testing, Ministry of Health February 2005, Page 3 - http://www.who.int/ to kill him because of his sexuality, he hiv/pub/guidelines/uganda_art.pdf UGANDA: ‘Where Do We Go for Justice?’ 21

reported a case of assault at the Old Kampala Sammy was then forcefully detained with Police Station. female suspects. After a while, he was removed and forced to record a statement. “Shockingly, the police offcers at Old He was ordered to sign the statement without Kampala Police Station refused to reading it. Sammy said to date; he does not handle our assault case and instead know what the police offcer wrote in that put us under arrest for being gay. They statement. He was further denied the right to slapped Kim and beat him with wires, make a phone call to his friends. and forced him to make a statement accepting to be gay” - Jackson Mukasa In September of 2013, Bernard Randall was (Kim, a co-accused agreed to this attacked and robbed of his British passport, statement during the interview) 63 visa ATM card, three smart phones, an iPad, a laptop computer, two digital cameras, In February 2014, Sammy S.,64 aged 28, a £2,500, €90 and Ugx 1,5 million and transgender man and a Paralegal offering wristwatch. He reported a case of robbery free legal assistance to LGBTI people was at the Entebbe police station on the same assaulted by the police while he had gone day and No 29058 D/CPL Tusiime took his to follow up on a case. He said the police statement65. On October 1, 2013, the police offcers at Kira Police Station in Namugongo arrested the suspects, Eric Bugembe and detained him and asked him whether he Waswa Sentamu. was a boy or a girl. He hesitated to answer being surprised by the question. A police The suspects confessed to stealing Randall’s offcer suddenly started slapping, beating, property and recorded police statements. and punching him, demanding he answers. In a charge and caution statement taken Sammy told Chapter Four Uganda the offcer before D/C ASP Aguti Pamela, the suspects then violently touched his crouch and chest confessed to the robbery and were charged to “confrm” his gender. before the Entebbe Chief Magistrates’ Court and remanded to prison. Sammy was then handed to a female offcer. This offcer took Sammy to a different room On October 18, 2013, pictures of Randall and forcibly removed his clothes. She then were published in a local tabloid and he was touched him while pointing at his private subsequently arrested on October 21, 2013 parts. During this process, the female offcer and charged with traffcking in obscene slapped and screamed at him. A crowd publication in accordance with Section 166 gathered and the police paraded Sammy (1) of the Penal Code66. The self confessed before them. Sammy said they then took him suspects in the robbery of Randall’s property around the police station, telling whoever return up as police witnesses and record cared to hear that he was a “thug” and that no statements claiming attempted Sodomy. one should associate with him.

63 Chapter Four Uganda interview with Jackson Mukasa, 65 Case was recorded under CRB 848/2013. Police statement Kampala, January 20, 2015 obtained and on fle at Chapter Four Uganda 64 Chapter Four Uganda interview with Sammy S., (not real 66 Court case fle on record at Chapter Four Uganda. Case names), Kampala, February 03rd, 2015 number is CO/0648 of 2013 22 UGANDA: ‘Where Do We Go for Justice?’

The robbery case trial abated and a furious effort to charge, humiliate and expose Randall ensued leading up to his deportation from Uganda.

In-cell abuse of sexual minorities Societal homophobia, as well as the Chapter Four Uganda documented cases of misapplication of an already existing police offcers, and fellow inmates assaulting retrogressive legal regime on sexual minority and abusing suspects in detention because persons, emboldened police offcers, and of their sexual orientation. The criminal other inmates to violate, dehumanize and justice system has general systemic problems degrade the sanctity of sexual minority on matters of mistreatment of inmates persons while in custody of the justice and detainees, but the research carried out system. Jackson Mukasa told Chapter Four by Chapter Four identifed specifc cruel Uganda that after his arrest, he was taken and inhumane treatment directed towards to Lungunjja Police Station. Upon arrival, sexual minorities on account of their sexual the police offcers and suspects in the cell orientation and usually at the instigation of questioned him why he was gay. the police. UGANDA: ‘Where Do We Go for Justice?’ 23

“The police offcers slapped me around “They (police) told all the inmates and called me insulting names. They that I was gay and that they shall do threatened to seriously beat me up if I anything they want with me” - Bad don’t say what they want to hear in the Black 70 statement. They forcefully obtained a statement from me under threats and In October 2013, James, a gay man aged forced me to sign it yet I never wanted 33, said he was punched, slapped, kicked too. The police offcers also told me and pushed around by police offcers and that I am cursed. That how can I allow prison warders during the entire time in people to fuck me in the anus?” - detention. In his own words, James refers Jackson 67 to the beatings and insults as ‘common’ incidences that made him feel like “taking “They (police) said they would even tell his own life” to escape the suffering. His the prisoners in the cell to beat me up” lawyers confrmed to Chapter Four Uganda - Jackson 68 he (James) reported these incidences.

Jackson said the treatment in the hands of the “I was treated very badly. I felt very police was generally bad. The treatment in small and thought several times about the police cell was not any better. committing suicide” 71

“I felt that the police offcers did not He further told Chapter Four Uganda that his treat us as human beings. We were fellow inmates were more cordial at frst but different from the other prisoners in the upon learning of the reason for his detention, cells. We were eating a special food. he was beaten up very often. The food that they brought for us was so disgusting. Our food was different “They (fellow inmates) would charge compared with other prisoners. Our me money for sleeping on the cold treatment was really bad.” - Jackson 69 ground foor of cement” 72

In another interview, Bad Black, a 25-year Samuel Ganafa told Chapter Four Uganda old gay Ugandan man living in Bwaise, a that while in detention, a police offcer called Kampala suburb, spoke of how his wrists him to record his statement. He spoke while were tightly tied with ropes during his arrest the offcer presumably wrote down what by police offcers. The ropes left painful he said. Samuel was then asked to sign the scars on him. On arrival at the police station, statement. Samuel politely requested to read other offcers beat him. the statement before signing it. He asked for his glasses.

70 Chapter Four Uganda interview with Bad Black, Kampala, 67 67 Chapter Four Uganda interview with Jackson Mukasa, January 30th, 2015 Kampala, January 20th, 2015 71 Chapter Four Uganda interview with James, Kampala, 68 Ibid February 10th, 2015 69 Ibid 72 Ibid 24 UGANDA: ‘Where Do We Go for Justice?’

The police offcers refused to give them Sexual minority persons have little chance to him. He said he was fnally forced to at justice in the criminal justice system. It sign a statement he had not fully read and is more imperative for the State to reform understood. its policies and practices on the detention of sexual minority persons, and provide Samuel further said he was also assaulted effective safeguards for the fair treatment on arrival at Luzira prison. He said a prison of these persons while under custody of the warder promised to kill him himself if he had justice system. sex with other inmates at the prison. The duty to protect sexual minority suspects, British national Bernard Randall detained like other suspects in detention, is on the on charges of ‘traffcking in obscene State. According to the Principles and publications’ said he was not treated so badly Guidelines on the Right to a Fair Trial and by the police though he generally observed Legal Assistance in Africa:73 that the offcers’ attitude towards him was different because of his sexual orientation. “States shall ensure that all persons under any form of detention or “I was not beaten by the police but the imprisonment are treated in a humane fact that I am white must have helped” manner and with respect for the inherent dignity of the human person.” However, Randall complained the police 74 refusing to allow him make any phone calls while at the police station. This frustrated his The public justice system in Uganda must efforts to access legal representation. ensure that when, specifcally, a person of different sexual orientation and gender In the case of Kevin Kevin, while in identity is deprived of their liberty, it takes detention at a police station, an anti-gay all steps necessary to ensure that the detained vigilante group stormed the police station, or imprisoned person is neither tortured, nor grabbed him and beat him in the presence of subjected to cruel, inhumane or degrading police offcers. treatment.

Kelly M., aged 25, narrated to Chapter Four However, our fndings indicate that sexual Uganda how he was arrested and locked up minority persons have been repeatedly and in a police cell in Kikajjo Police Station. He severely beaten, denied the opportunity said the offcers refused to tell him why he to inform next of kin of their arrests, was being detained. While in detention, the admonished and chastised for being gay, police offcers refused to allow him make threatened with violence including death, phone calls to his lawyer or friend. discriminatively treated compared to other The in-cell violations documented above, prisoners and inmates, tortured for purposes point to a recurrent pattern of physical and of information extraction, indecently psychological abuse of persons of different sexual orientation and gender identity while 73 African Commission on Human and Peoples’ Rights, DOC/OS in detention or custody. (XXX) 247. 74 M7, p. 12, (Right to humane treatment). UGANDA: ‘Where Do We Go for Justice?’ 25

assaulted, and forced to authenticate their above the rank of inspector to ‘cause’ taking written statements without reading or of photographs of any suspect or convict verifying the information. who is in lawful custody. In the event that such a person ‘refuses’ to allow his or her Media parading of LGBTI victims in the photographs to be taken, they become liable face of increased risks in the society to a fne or imprisonment for one month. It is only after serving this sentence that The parading of suspects to the media by the police may use ‘reasonable force’ to the police before production in court is have such photographs taken. The intended common practice. The parade of suspects is purpose of the provision was for evidential accompanied with them being photographed and record, not press, purpose. and their statements scrutinized by journalists. The press coverage of these The parade of persons of different sexual parades often refers to suspects as “hardcore orientation and gender identity in the press criminals” and “thugs,” even though they only escalates the risks of violence in a have never been convicted of any crime75. society that is hostile to them. In this report, In the case of persons with different sexual Chapter Four Uganda has documented cases orientation and gender identity, they are where the police offcers use threats and always accompanied by the demeaning and beatings to get some LGBTI suspects to the derogative words such as “serial sodomiser”, media parade. “child pedophile” et al.76. Whereas media parades of detainees are The press parades by the police serve several a general violation, this practice presents purposes: to create public support for the increased risks to persons of different sexual police and satisfy the largely religious and orientation and gender identity. Public and other folks, to serve as a deterrent, and any information describing an individual to be a potential platform for suspects’ as homosexual is likely to attract cruel and confessions. However, such policies aimed violent reaction from the anti-gay vigilantes. at forced public shaming of individuals can During this research, Chapter Four Uganda amount to violations of suspects’ rights to a documented cases of LGBTI suspects and fair trial and fout principles of due process77. victims being evicted from their residences, loss of employment, excommunication from In limited circumstances, the Police Act78 their communities, and other gross violations provides for an exception for a police offcer as result of being identifed in the local media as gay or transgender. 75 See for instance Human Rights watch, Violence Instead of Vigilance, Torture and Illegal Detention by Uganda’s Rapid Response Unit (available at http://www.hrw.org/sites/default/fles/reports/ In October 2013, King79, aged 30, was uganda0311Web.pdf. Accessed Feb., 2015) arrested on charges of sodomy. He recounted 76 “Gang of rapists, deflers arrested”, Te Red Pepper newspaper, 26/11/2013 on page 10; “Teacher nabbed for sodomising students”, Te to Chapter Four Uganda that while in Red Pepper newspaper, 12/11/2013 on page 10. King has these copies of detention, he was forcefully pulled out of his the publications photocopied and neatly stapled together in an old fle that he moves with. He told Chapter Four Uganda that he hopes one day, he will get justice when his name is cleared King Byabagye Wenceslaus; charged with the offence of Ibid 79 77 sodomy under CRB 2354/13. GEF 17/2013. The case was still pending at 78 The Police Act Cap 303, Section 30; http://www.opm.go.ug/ police at the time of publication of this report. The suspect continues to assets/media/resources/297/POLICE%20ACT.pdf Accessed Feb., 2015 report on police bond. 26 UGANDA: ‘Where Do We Go for Justice?’

cell numerous times to be paraded before the before the media several times during media to have his photographs taken. their detention in February 2014. Their photographs and video footage were taken at “A journalist would walk into the the police station before they were formally police station at anytime and ask to charged in court. Due to the massive media see me and they would bring me out of coverage, Kim was disowned by his family. my cell to be photographed without my He was evicted from a small business stall consent after which I would be taken he operated in a local market. They both back to my cell. I felt as if I was less reported receiving threats from the public. human.” 80 Sammy S.,84 a transgender man who also In all publications and broadcasts, King’s offers free paralegal services to the LGBTI names and/or photos were characteristically community in Uganda was paraded to the exposed. In one of the publications we have media together with the suspect (another referenced, a journalist of the Red Pepper transgender man). Sammy had gone to that tabloid wrote, ‘Byabagye at Ntungamo police station to secure police bond for Police Station under King’s photo. The the detained transgender man. The police police was gladly authorizing this violation offcers accused him of impersonation and of King’s right to privacy and fundamental theft. He said the police claimed he had been tenets of right to fair hearing. conning people by ‘pretending to be a man’. Sammy’s efforts to explain to them who a King recounted that after his release on transgender is were all futile. police bond in January 22nd, 2014, he could not stay at his home. The media publicity in “Before the media, the transgender his case made everyone aware of his sexual man I had come to help out and I were orientation. An anti-gay vigilante group both paraded for impersonation and in his locality once attempted to lynch81 theft. The police offcers claimed that I him because they could not stay with a had been conning people by pretending homosexual in the same village. Jackson to be a man. I appeared on news on Mukasa82 and Kim Mukisa83 narrated to Bukedde Television. I tried to explain to Chapter Four Uganda how they were paraded them what it means to be a transgender but they did not listen to me at all.” 85

80 Chapter Four Uganda interview with Byabagye King Wenceslaus, Kampala (Uganda), January 19, 2015 81 “Immediately I got bond, the community in Ntungamo and Mbarara wanted to lynch me. I had to fee to Kampala for my life after receiving threats from mobs I often met on the road” – King’s statement from an interview with Chapter Four Uganda, Kampala (Uganda), January 19th, 2015 82 Jackson Mukasa, aged 19, charged with the offence of ‘permitting a person to have carnal knowledge of a person against the order of nature’ contrary to section 145 (c) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in October 2014 84 Real names withheld on request (pseudonym). He was arrested and detained at Kira Police Station in Namugongo in February Kim Mukisa, aged 24, charged with the offence of ‘having 83 2014 on charges of impersonation and theft. The case was dismissed at carnal knowledge of a person against the order of nature contrary to the police station and no reasons were given section 145 (a) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in 85 Chapter Four Uganda interview with Sammy S., October 2014 (pseudonym), Kampala (Uganda), February 3rd, 2015 UGANDA: ‘Where Do We Go for Justice?’ 27

In another interview86, Ahmed Shabaz87 “When I refused to be photographed, told Chapter Four Uganda that the media the police started to beat me. I was coverage in his case was deafening. He said beaten all over my body. They forced the unnecessary negative media exposure me, and I could impossibly fght with 20 depicted him and his colleagues, as rapists police offcers” 92 and homosexuals. It built a very negative narrative towards the company that his James said he was forcefully paraded, bosses had to terminate his services even if photographed and video graphed. He said he was found innocent by court88. police made sure he did not protest. He said since his family and pastor saw him on Samuel Ganafa,89 a 54-year old gay activist the news, none of them associate with him in Kampala told Chapter Four Uganda that anymore. he was paraded before the media against his will while in detention. His photographs Bernard Randall narrated to Chapter Four were taken and a video recorded for news Uganda how it became routine while at clips. They were aired on local television the police station to be paraded in front of channels. In all these broadcasts and journalists to have them take photographs. publications, Samuel said his ‘innocence’ He said he did not consent to the media was ‘robbed’ from him before he was parade but the police didn’t care what he produced in court. thought.

“I was identifed as a sexual offender “There was this journalist from the by some media houses while others Red Pepper; Sadik was his name. He referred to me as a rapist. It was very was so interested in my medication. humiliating” 90 The journalist had become interested in my medicine since the police openly In an interview, James,91 a gay man aged 33 exposed everything for them and called years, told Chapter Four Uganda that he tried my medicine – drugs for gays. They to protest being paraded before the media but later wrote very bad things about me” was seriously beaten by the police. 93

86 Chapter Four Uganda telephone interview with Ahmad Shabaz who was in Pakistan, January 22nd, 2015 In April 2014, following the arrest of Milton 94 87 Ahmad Shabaz, charged with the offence of ‘having carnal K, aged 26, an LGBTI rights activist, knowledge of a person against the order of nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; CRB 155/2013 (Kiwatule Police a police offcer at Kireka Police Station Station); The accused was acquitted by the trial Chief Magistrate at took his photos and displayed them with Buganda Road Court in December 2014. homophobic wordings. 88 Chapter Four Uganda telephone interview with Ahmad Shabaz who was in Pakistan, January 22nd, 2015 89 Samuel Ganafa, aged 54, charged with the offence of ‘having carnal knowledge of a person against the order of nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; CRB 145/2013 (Kasangati Police Station). The case was dismissed in October 8th, 2014 92 Chapter Four Uganda interview with James (pseudonym), for want of prosecution Kampala (Uganda), February 10th, 2015 90 Chapter Four Uganda interview with Samuel Ganafa, 93 Chapter Four Uganda interview with Bernard Randall, Kent Kampala (Uganda), January 6th, 2015 (UK), February 11th, 2015 91 Real name of accused withheld on his request for fear of 94 Milton K., was arrested after being found with two gay further victimization (pseudonym). CRB 889/13 (Entebbe Police Station). magazines in his home. He was detained at Kireka Police Station and His case is still ongoing in court. later released after the police fnally dropped the case 28 UGANDA: ‘Where Do We Go for Justice?’

“I remember the offcer in charge even “It is a mistake and we shall take took photos of me without my consent it up as an institution (police). Our and he printed those photos and put public relations offcers need more them on the notice board in the police sensitization” 98 station – meanwhile he had written on the photos: ‘Be aware of gays’.I felt so Despite of all this rhetoric, police and the badly treated” 95 media continue to connive to parade suspects to the media and have sensational stories While speaking at the launch96 of the pre- published with no regard to the attendant trial detention guidelines, Justice David human rights violations. Wangutusi observed that no amount of crime, including terrorism, justifes police’s actions It is important to observe the role this of parading criminal suspects before the irresponsible and unprofessional practice press. plays in promoting hate crimes against sexual minorities in Uganda. “Presumption of innocence is absolute; you cannot perforate it on the negative. Diffculty to access court bail and police When police parades suspects on TV, bond what do you expect the courts to do? Chapter Four’s investigations revealed To believe witnesses who come and instances of different sections of the public identify them on TV?...... If they and the justice system, arbitrarily restricting have already identifed suspects on TV, the right to sexual minority persons to access which court can believe them? You are both police bond and bail. opening the Attorney General (AG) to payment of damages if these people Under a police bond, the police offcer in fle suits for having been convicted by charge of a police station has the power to police before court convicts them. The release a person taken into custody without AG is liable so we lose either way.” 97 a warrant where it is not reasonably possible to take that person to court within forty-eight In reaction to Justice David Wangutusi’s hours of arrest. No fee is required to be paid comments, James Kusemererwa, a senior for this process. superintendent from the police’s directorate of human rights admittedly observed; Bail on the other hand is an agreement between the accused, including the sureties, and the Court that the accused will pay a certain sum of money fxed by the court on failure to attend the trial on a determined date.

95 Chapter Four Uganda interview with Milton K., Kampala (Uganda), February 2nd, 2015 These two process are hinged on the 96 Launch took place on 08th August 2014 presumption of innocence of the accused 97 “Stop parading suspects before the media, Judge person/suspect; the notion that one should warns police” – Daily Monitor - http://www.monitor.co.ug/News/ National/Stop-parading-suspects-before-the-media--Judge-warns- police/-/688334/2413692/-/qg9aag/-/index.html Accessed in Feb, 2015 98 Id UGANDA: ‘Where Do We Go for Justice?’ 29

not be confned or incarcerated where there some sexual minority persons were being has been no clear and proven guilt of an denied police bond and being given offence99. unreasonable conditions for bail by courts.

The person in custody has the right to When Kim Mukisa and Jackson Mukasa apply for bail, not necessarily the right to were arrested for being gay, they were be granted bail. Thus, as the Principles and detained for seven days in police custody. Guidelines on the Right to a Fair Trial and Kim said a police offcer indicated to him Legal Assistance in Africa indicate, on the that there was no hope in them getting satisfaction of the fact that the case will not police bond because of the extensive media be jeopardized by the release of the accused coverage and public interest in their case. person, the Court can grant bail. Jackson further told Chapter Four Uganda that it had to take efforts102 of their lawyers “Unless there is suffcient evidence to engage the Inspector General of Police that deems it necessary to prevent a and the Uganda Human Rights Commission person arrested on a criminal charge to have them produced in court. Kim and from feeing, interfering with witnesses Jackson narrated to Chapter Four Uganda or posing a clear and serious risk to how police offcers denied them access to others, States must ensure that they their family and friends who were looking to are not kept in custody pending their help them. Jackson said they refused to tell trial. However, release may be subject his lawyer where exactly he was locked up to certain conditions or guarantees, because they wanted him to suffer. including the payment of bail.” 100 Furthermore, both Kim and Jackson told Chapter Four that during their trial, they The Constitution of Uganda further provides applied for bail. They said that they were for the right to apply for bail: shocked when the trial Chief Magistrate ordered them to bring four sureties each, “Where a person is arrested in and a recommendation letter from the very respect of a criminal offence— [...] Local Council (LC) Chairperson who led the person is entitled to apply to the the anti-gay vigilante group that assaulted court to be released on bail, and the them during their arrest. Kim told Chapter court may grant that person bail on Four Uganda that his father had to kneel such conditions as the court considers down for the area Chairperson to write that 101 reasonable [...]” recommendation letter; a letter in which the Chairperson unusually included a disclaimer. However the discretion of the Court as to The whole ordeal was very humiliating for what the conditions should be, is guided by both Kim and his father. what is reasonable in the circumstances. Relatedly, Chapter Four discovered that The unusual nature of the treatment of Kim and Jackson during the process of 99 Article 28(3)(a) of the Constitution of the Republic of Uganda 100 African Commission on Human and Peoples’ Rights, DOC/ OS (XXX) 247, M (1)(e) 102 Chapter Four Uganda had not obtained a copy of any of the 101 Article 23(6)(a) correspondence referred to here by the time of writing this report. 30 UGANDA: ‘Where Do We Go for Justice?’

bail application was the fact that common characterized itself in the constant threat that practice required two sureties per accused a sexual minority person would be ‘outed’ or rather than four as Court insisted. More to revealed to the general homophobic public/ that, court adjourned the case to scrutinize society as a homosexual. Police and other the bail documents of the accused – persons who were aware of the bashing, something not usual in regular criminal law ostracism, and general mistreatment that practice. It is no surprise that, in the end, the sexual minority persons would receive on whole bail application procedure took four exposure, perpetrated this extortion based on months before the two were fnally released. the fear of publicity on the part of the sexual minority persons. It is very evident that the sexual orientation of Kim and Jackson had a bearing on the The Uganda public justice system is required diffculty in them accessing both police to adhere to certain basic minimums of bond and bail. Both the Police and the Court fairness, independence and justice and not made a curious deviation from common yield to corruption and misuse of the system practice in these processes to make it next to proft from the misfortune or vulnerability to impossible for the two to access bond and of victims or accused persons. Extortion bail, respectively. and blackmail by the Police in particular, compromises the ability of the justice system The discretionary nature, particularly of the to effectively investigate and prosecute bail process, has great potential for abuse. crime. In particular, sexual minority persons It is easy for homophobic persuasions to be fnd themselves excluded from the cover disguised and hidden behind supposedly of the law when they are required to make fair and judicious pronouncements by the payments in order to be protected. This Courts. Although some could explain away further encourages discrimination by the these discrepancies with a fervent argument system and fosters an arbitrary approach in for the latitude of the Court’s discretion on the way cases of sexual minority persons are reasonableness, it is extremely diffcult to handled. escape the role that sexual orientation and homophobia had to play in these unusually From investigations and interviews carried delayed, otherwise swift processes. It is out by Chapter Four, it was evident that very critical that the criminal justice system extortion of money and property from sexual reforms its approach in this matter, and minority persons was very prevalent. Due to desists from abuse of both legal processes their sexual orientation, homosexual persons and judicial discretion. experienced delays in having their matters recorded and concluded at police. These Use of criminal charges for extortions and delays were not premised on similar factors blackmail as other matters at police; these unnecessary delays hinged on the fact that the Police Chapter Four uncovered evidence of could easily expose the sexual minority extortion of money, and the attempts to do persons to potential injury and harm from a so, from sexual minority persons by the very homophobic society. police and the media. This form of blackmail UGANDA: ‘Where Do We Go for Justice?’ 31

King told Chapter Four Uganda that the Peter told Chapter Four Uganda that the police offcers handling his fle blackmailed offcers further verbally accused him of him to extort money on numerous occasions kidnapping school children, young boys and despite him being a suspect. having sex with them. No related charges were placed on him despite the horrendous King said they had so far extorted sweeping accusations. He said he believed approximately UGX: 1,500,000/= the allegations were intended to blackmail (US$555)103 from him. One of the reasons him to pay money. the offcers allegedly used numerous times to blackmail him was that the money While at the police station, Peter narrated was “transport facilitation” to search for to Chapter Four Uganda how he was complainants and victims to make statements detained in the police cells without taking from which he was promised that it would his statement or particulars. He said his provide a basis for him to be found “with no information was not entered into the case to answer” since they also believed that registration book for a while as offcers tried he was innocent. to extort money from him. He told Chapter Four Uganda that it is only after they realized The complainants and victims had he had no money that they opted to register disappeared and were no longer following his details. This case was never presented to their case. To provide a basis for his court. allegations, Chapter Four Uganda asked King to make a phone call to one of the In an interview with James, he told Chapter police offcers handling his fle at Rwizi Four Uganda that after the police paraded Regional Police in Mbarara to inquire about him before the media, he started receiving the status of his fle and the offcer was threatening calls from a journalist. He said heard104 demanding for money from the one journalist introduced himself as a staff suspect if he is to be set free. reporter at the Red Pepper tabloid and clearly wanted to blackmail him. In May 2014, a gay man by names of Peter K., was arrested and detained at Namasuba The journalist wanted at least US$5,220 Police Station. in exchange for not publishing his pictures taken at the police station. James told him “They (police offcers) started asking he did not have the amount of money and me humiliating questions such as; Why his photographs were published shortly after are you gay? Who is funding you? How that. much do you earn when you have sex with a man?” 105 James further told Chapter Four Uganda that while at the police station, the police

103 Because of the nature of extortion claims, Chapter Four offcers that handled his case blackmailed Uganda would not independently verify the specifc details of these claims and assaulted him. 104 During the telephone conversation between King and the police offcer on January 19th 2015, Chapter Four Uganda heard the offcer demanding for money from King to facilitate him to ‘transport’ the fle from Mbarara to CIID police headquarters in Kampala. 105 Chapter Four Uganda interview with Peter K., Kampala, January 05th, 2015 32 UGANDA: ‘Where Do We Go for Justice?’

“The police asked me how much The police have often fronted an argument property or money I had. When I that it is diffcult to complete investigations refused or hesitated to answer, they within the 48 hours to produce an accused slapped me in the face and beat me up. for trial at court. They have also detained After I told them that I owned a car, suspects brought to them by anti-gay land, and a small boutique, they forced vigilantes without conducting professional me to sign some papers indicating that investigations into the complaints. I had given up or sold some of those items. It was terrible” 106 Whereas arbitrary arrests and prolonged detention of detainees are general violations, James was later to hand over his property these practices present far-reaching and had to pay another £2,500 and UGX: 12 consequences to people of sexual minorities. millions to police offcers. Cases of police offcers arresting people because of their alleged sexual orientation In a nutshell, the above information or gender identity without any prima facie demonstrates a very clear pattern of abuse case and detaining them for long periods of the criminal justice system to prey on the because of homophobic public pressure were vulnerability of sexual minority persons. documented. This vulnerability that causes homosexual persons to pay large sums of money to The victims interviewed for this report protect their identity from exposure, is narrated how these arbitrary arrests and rooted in the fact that a broken justice system prolonged detention subjected them to being recognizes the ‘beneft’ in preying on rather outed, attacks from the homophobic anti-gay than protecting citizens. community members, loss of employment, evictions and intrusive non-consensual It is on this premise that Chapter Four medical experiments. challenges the main players in the justice system, particularly the Police, to King107, a secondary school teacher108 aged monitor and establish internal checks and 30, was arbitrarily arrested and detained mechanisms to guard against this use of the at a police station for 84 days without criminal justice system for fnancial gain charge. These violations were precipitated from vulnerable sexual minority persons. by his sexual orientation. As a gay man, he had his adult partner who was neither a Arbitrary arrests and prolonged detention staff nor a student at the school. When the school administration somehow learnt of his The practice of police arbitrarily arresting sexual orientation, they framed109 him for suspects and subjecting them to prolonged detention beyond the constitutionally 107 King Byabagye Wenceslaus; charged with the offence of provided timeframe of 48 hours is common sodomy under CRB 2354/13. GEF 17/2013. The case was still pending at police at the time of publication of this report. The suspect continues to in Uganda’s criminal justice system. It is report on police bond. a violation that occurs to many suspects, 108 He was teaching at Hibiscus High School in Ntungamo LGBTI or heterosexuals. District. The school was managed by PEAS Uganda. 109 King notes that the lead complainant in the case was the Headmaster of the school and not the purported victims or their parents. 106 Chapter Four Uganda interview with James (pseudonym), No charge has further been placed on him despite being arrested over a Kampala (Uganda), February 10th, 2015 year ago. UGANDA: ‘Where Do We Go for Justice?’ 33

sodomising his male students to make sure court. His pleas to get police bond were that he lost his job at the school110. He was rubbished113 even when he had substantial arbitrarily arrested111 on 30/10/2013 without sureties. any formal, substantial complaints being registered at the Police Station. King told Chapter Four Uganda that it took heightened pressure from the Uganda Human King was then arbitrarily detained at Rights Commission114 to the Rwizi Regional Ntungamo Police Station for 16 days without Police to have them release him on police being produced in court. bond on January 22nd, 2014 from the cell where he had been locked up and forgotten. In November 16th, 2013, he was transferred to Mbarara Police Station and his fle To date, King has reported on police bond 12 forwarded to Rwizi Regional Police for times. One year after he was frst arrested, further management under reference GEF King’s personal liberty continues to remain 17/2013. constrained and he is yet to be produced in any court to have a chance to prove his “I learnt that the cause of my transfer innocence. King has been robbed of his right was that after the suspected victims to a fair and speedy trial, if indeed; he has were medically examined and all the any case to answer. other statements reviewed, the Resident State Attorney of Ntungamo found that A researcher from Chapter Four Uganda I had no case to answer. She refused to travelled to Mbarara and Ntungamo districts sanction the fle. When the headmaster to independently verify these claims and heard of this, he thought I had bribed establish the status of the fle. The offcers the State. This made him ran to see the at Rwizi Regional Police informed our CID boss in Mbarara to allege that researcher that the fle had been transferred the fle was being mishandled which to Kibuli Police CIID headquarters. prompted him to call for my fle hence the transfer.” 112 Thus, Chapter Four Uganda contacted the records department at Kibuli Police CIID In Mbarara, King was detained for 68 headquarters and independently established more days in police custody. He narrated that indeed, the fle was received on 16th of to Chapter Four Uganda of how he was January 2015. Notwithstanding, no progress arbitrarily detained for a total number of had been registered on this fle by the time of 84 days in police custody without being writing this report. formally charged or produced before a

Chapter Four Uganda obtained a copy of a letter from the Chapter Four Uganda obtained a copy of King’s letter of 113 110 Uganda Human Rights Commission dated 20/12/2013 under Reference termination from Hibiscus High School dated 30/01/2014 MBR/90/2013 to the Regional Police Commander of Rwizi observing 111 Chapter Four Uganda could not independently verify King’s that efforts by the relatives of King to secure police bond for the suspect claims that no substantive complaints had been made at the time of his had been futile. arrest to qualify the need to have him arrested. However, the narrative Chapter Four Uganda obtained copies of two letters from the and information seen by Chapter Four Uganda appear to strongly justify 114 Uganda Human Rights Commission addressed to the Regional Police his assertions Commander of Rwizi Region. The frst letter is dated 20/12/2013 and 112 Chapter Four Uganda interview with Byabagye King after receiving no response, a reminder letter was issued on 10/01/2013 Wenceslaus, Kampala (Uganda), January 19, 2015 demanding for immediate action. 34 UGANDA: ‘Where Do We Go for Justice?’

Stephen & Milton, both transgender people In January 2014, Kim Mukisa116 and Jackson in their 20s, were arbitrarily arrested at a Mukasa117 were arrested and detained for 5-Star hotel in Kampala and detained at seven days in police custody for being gay. Kampala Central Police Station for hours on Kim said a police offcer indicated to him unfounded suspicion that they were holding that there was no hope in getting police bond a gay wedding ceremony at the 5-Star hotel. because of the extensive media coverage and They were part of a gathering attending a public interest in their case. Jackson further cocktail organized by Sexual Minorities told Chapter Four Uganda that it had to Uganda (SMUG). take efforts118 of their lawyers to engage the Inspector General of Police and the Uganda “I was at the hotel like other people Human Rights Commission to have them when I suddenly saw 2 people in produced in court. plain clothes approaching me and my colleague. They identifed themselves Jackson and Kim narrated to Chapter Four as police offcers and asked for our Uganda how police offcers denied them identifcation and what we were doing access to their friends who were trying to at the hotel. I told them I was there help them. Jackson said they refused to tell to attend a cocktail dinner organized his lawyer where exactly he was locked up by SMUG. One of the offcers then because they wanted him to suffer for being ordered me to hand over my wallet and gay. while he searched my wallet, another offcer showed up and placed the two In December 2013, Tommy N.119, aged 54 of us under arrest and ordered us to was arbitrarily arrested and subsequently accompany them to the police station. I detained for 10 days before being given asked to know why I was being arrested police bond. According to Tommy’s police but the offcers did not tell me why.” 115 statement120, while in the United Kingdom (UK) in December 2012, he was shocked Stephen told Chapter Four Uganda that by news on the Internet alleging that he had they were later arbitrarily detained at the sodomised several people here in Uganda. police station for no apparent reason and their Identity Cards were confscated and photocopied. They were however shortly released, for no apparent reason, without 116 Kim Mukisa, aged 24, charged with the offence of ‘having carnal knowledge of a person against the order of nature contrary to charge despite the arrest and detention. section 145 (a) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in October 2014 117 Jackson Mukasa, aged 19, charged with the offence of ‘permitting a person to have carnal knowledge of a person against the order of nature’ contrary to section 145 (c) of the Penal Code Act Cap 120; CRB 143/2013 (Old Kampala Police Station); Case was dismissed for want of prosecution in October 2014 118 Chapter Four Uganda had not obtained a copy of any of the correspondence referred to here by the time of writing this report. 119 Real names withheld on request of the interviewee for confdentiality and other personal reasons (pseudonym). GEF E/488/2013 (CIID Police Headquarters). His case is still going on in court. 115 Chapter Four Uganda interview with Stephen (pseudonym), 120 Chapter Four Uganda obtained copies of statements and Kampala (Uganda), January 19, 2015 medical records on Tommy’s (pseudonym) fle for analysis UGANDA: ‘Where Do We Go for Justice?’ 35

Graphic images allegedly depicting him in Ahmad Shahbaz123, aged 32, of Pakistan compromising positions with his victims origin faulted the police for rushing to were widely circulated. arbitrarily arrest him and his colleague without verifying the allegations that they Records on fle indicate that upon learning had gang-raped and sodomised a 23-year-old of his alleged sexual orientation in the news, woman in Kampala. the police solely relied on that information to open up a General Enquiries File (GEF)121 He told Chapter Four Uganda that the and process an Interpol arrest warrant. police’s actions were dictated by media pressure and homophobia of the public that In December 2013, Tommy came back to effectively made them fail to carry out proper Uganda and reported himself to the police investigations. to categorically deny the allegations and the authenticity of the images depicting him as “There was no proof; she reported to have been committing the offence. to them (the Police) and then my No evidence in our research suggests that colleagues and I were arrested. the police conducted a comprehensive The Police never went to check the verifcation process to fully ascertain the information to get the truth.” 124 authenticity of the images in the local tabloids. The police offcers handling the fle He was then detained at Kira Road Police did not share with us any information to the Station in Kamwokya for one week. contrary despite being approached. Samuel Ganafa125, an LGBTI rights activist Nevertheless, Tommy was put under arrest told Chapter Four Uganda that police offcers and members of the public were called upon from Kasangati Police Station went to his to go and report to police if they are victims home and informed him that they had got of the accused. An extensive search for the orders from higher ranking offcials to arrest purported victims started in earnest while he him and other LGBTI people who were was in detention. within his home that day. They accused him of recruiting people into homosexuality and Chapter Four Uganda further obtained a copy after failing to found their allegations; they of an amended charge sheet122 detailing how decided to charge him with sodomy. police has received only two alleged victims, one of whom claims to have been sodomised by Tommy in 2004 (over 10 years ago).

123 Ahmad Shabaz, charged with the offence of ‘having carnal knowledge of a person against the order of nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; CRB 155/2013 (Kiwatule Police Station); The accused was acquitted by the trial Chief Magistrate at Buganda Road Court in December 2014. 124 Chapter Four Uganda telephone interview with Ahmad Shabaz who was in Pakistan, January 22nd, 2015 Chapter Four Uganda interview with Samuel Ganafa, The original case fle was opened up at Kira Police Station 125 121 Kampala, January 06th, 2015. Samuel Ganafa, aged 54, was charged with before being transferred to Kibuli Police CIID headquarters the offence of ‘having carnal knowledge of a person against the order of 122 Amended charge sheet dated 8/8/2014 has two counts of nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; CRB having carnal knowledge against the order of nature, contrary to section 145/2013 (Kasangati Police Station). The case was dismissed in October 145 (1) of the Penal Code Act, Cap 120. Two victims are mentioned. 8th, 2014 for want of prosecution 36 UGANDA: ‘Where Do We Go for Justice?’

In October 2013, James126 was arbitrarily with him that he is a man, Sammy said he arrested at Entebbe Police Station where he was beaten, undressed and detained for had gone to follow up a case of theft he had impersonation and theft. The police offcers reported at the same police station. were furious that he said he was a ‘man’ yet according to them; he was a ‘woman’. He told Chapter Four Uganda that the robbers who stole his property had been These incidences of arbitrary arrests arrested and during interrogation, they and prolonged detention contravene the told the police offcers that James, the Constitution of the Republic of Uganda as complainant, in their case was gay. espoused under Article 23 (1) (c) & (4) (b) in relation to the protection of personal liberty. Without any incriminating evidence to warrant an arrest apart from unverifed video The practice is also in total violation of the recordings, police arrested him and went Principles and Guidelines on the Right to a ahead to deny him police bond. Fair Trial and Legal Assistance in Africa129 as provided under section M (1) (2) (3) & Kelly M. was arbitrarily arrested and (4) and other several international legal detained at Kikaijjo Police Station instruments ratifed by Uganda. after fnding him with correspondences indicating that he had been invited to an Institutionalized homophobia in the LGBTI conference in Mexico in 2014. The criminal justice system conference was organized by Lesbian, Gay, Bisexual, Trans and Intersex Association Chapter Four Uganda reviewed the collected (ILGA). He said his house was searched data to assess whether there is any pattern without a search warrant. of behavior indicating a biased approach from the major actors in the criminal justice “She (CID boss) urgently informed me system on the basis of sexual orientation or about my rights and she even blamed gender identity. the police for not allowing me to make my phone call. The CID knew the law, Research revealed patterns of endemic this was totally different with the police institutionalized homophobia within the 127 (who arrested him).” criminal justice system.

128 In February 2014, Sammy S., was The police tended to allow its actions arbitrarily arrested and detained when he had to be dictated by a homophobic society gone to Kira Police Station in Namugongo compounded by sensational and intrusive to follow up on a case of another transgender media coverage. This involved decisions man. After the police offcers failed to agree related to when to effect arrests, conduct of investigations and collection of evidence 126 Chapter Four Uganda interview with James (pseudonym), including extraction of statements, and the th Kampala (Uganda), February 10 , 2015 exercise of discretion to grant police bond. 127 Chapter Four Uganda interview with Kelly M., Kampala (Uganda), January 23rd, 2015 128 Chapter Four Uganda interview with Sammy S., 129 The principles were developed by the African Commission on (pseudonym), Kampala, February 03rd, 2015 Human and Peoples’ Rights of the African Union UGANDA: ‘Where Do We Go for Justice?’ 37

Cases of police offcers assaulting suspects procedures and the courts entertain the or extorting money from them on basis of accused to be tried on the basis of such their sexual orientation or gender identity evidence. were also documented as detailed in other parts to this report. As a result of the institutionalized homophobia within the judiciary and Chapter Four Uganda wrote a letter to the the entire criminal justice system, these Director of Public Prosecutions (DPP) violations have become a norm of the modus requesting for offcial statistics from his operandi. offce to inform our interrogation of the conviction rate in these cases but the DPP Chapter Four Uganda obtained case records implied lack of this information by only of Johnny132, a 24-year-old gay man. observing, “unfortunately, we don’t have the Analysis of the fle revealed evidence of statistics”130. institutionalized homophobia in police and the offce of the DPP on the basis of sexual However, of all the cases reviewed by orientation or identity. Chapter Four Uganda for this research, no single case resulted in successful conviction In his police statement in January 2014, where the accused was sentenced. the victim who was accusing Johnny of the offence stated;- Whereas this pattern of failure to secure convictions can be attributed to numerous “…. and when he came in, he again factors as rightly observed by the DPP, his smeared me the jelly in the anus and Lordship, Mike J. Chibita thus, “Courts whenever he could try to push the penis of law have the fnal say”131, it is diffcult in my anus, it could go between my not to question the impartiality of State thighs whereby he did not penetrate my Attorneys who exercise the DPP’s powers anus” 133 when sanctioning these cases. More to this, incidences of prosecutors using evidence He further followed that; - obtained through torture and other degrading means to prosecute people of sexual “However, (Johnny’s) penis did not minorities were documented. enter into my anus but it was just passing between my thighs” 134 Chapter Four Uganda further documented cases of Judicial Offcers entertaining In January 31st, 2014, Johnny also made his cases that are founded on evidence that is statement at police. He states;- obtained through torture and abuse of the accused’s rights. Police and the prosecutors 132 Real names withheld on request (pseudonym). Accused was consistently obtain medical evidence charged with the offence of ‘having carnal knowledge of a person against the order of nature’ and then the prosecutor amended the charge sheet and through intrusive, inhumane, and degrading preferred the charges of ‘simple deflement’ and ‘indecent assault’. The case was dismissed for want of prosecution after prosecution failed to produce any evidence despite numerous adjournments 130 Excerpt from a letter from the Director of Public Prosecutions 133 Excerpts from the signed police statement of the victim in the dated February 5, 2015 under Ref: PRO 42/80/01 case of Johnny (pseudonym) 131 Ibid 134 Ibid 38 UGANDA: ‘Where Do We Go for Justice?’

In an interview with Samuel Ganafa139, “I told him (alleged victim) that I like an LGBTI rights activist in Kampala, he masturbation and I used petroleum jelly expressed concern over the conduct of the and smeared him in between his thighs police which he described as a general and pressed my penis between the perception that a gay suspect must be locked thighs fucking until I released sperms.” up even if it is based on the slightest of 135 suspicions.

Noticeably, if Johnny was to be charged with “The police was homophobic and any offence, it was supposed to be ‘indecent solely took one side. The case was not assault’ but because of the institutionalized fairly investigated. The police was homophobia, the moment the police and biased and did not even take time to offce of the Director of Public Prosecutions investigate. They just tried as much as heard of the related words, they erroneously possible to get a gay-person in prison.” charged Johnny with an offence they were 140 obviously fully aware that he had not committed. To suggest otherwise would be James141 told Chapter Four Uganda that his to undermine their legal knack. There was no doctor gave him medicine to take while still actus reus136 to found the charge. in police custody since he was not feeling well. He said that whenever he took his In February 2014, the police formally medicine, the police offcers present would preferred a charge137 of ‘having carnal make fun of him and often said it was ‘drugs knowledge of a person against the order of for gays’ and they would never want to nature’. touch the medicine.

A month later in March 2014, the Resident Several cases have also been documented in State Attorney at Buganda Road Court this report142 revealing how institutionalized amended138 the charge sheet by preferring homophobia within the police makes police the charges of ‘simple deflement’ and an offcers to ignore complaints fled by LGBT alternative charge of ‘indecent assault’. people or offences generally committed against them. This has resulted in numerous By this time, Johnny had suffered the chilling LGBT rights violations by those stigma that comes with being outed as a that should be protecting all citizens without homosexual. discrimination.

135 Excerpt from the police statement of Johnny (pseudonym) 139 Samuel Ganafa, aged 54, charged with the offence of ‘having dated January 31st, 2014 carnal knowledge of a person against the order of nature’ contrary to section 145 (a) of the Penal Code Act Cap 120; CRB 145/2013 Latin term used to describe the physical act of the crime one 136 (Kasangati Police Station). The case was dismissed in October 8th, 2014 is charged with for want of prosecution Chapter Four Uganda obtained a copy of the charge sheet. 137 Chapter Four Uganda interview with Samuel Ganafa, The Resident State Attorney at Mwanga II Court sanctioned the fle and a 140 Kampala (Uganda), January 6th, 2015 magistrate signed the same 141 Real names withheld on request (pseudonym) 138 Chapter Four Uganda obtained a copy of the amended charge sheet dated 24/03/2014 and the details under statement of offence are; 142 See the section of ‘Disregard of LGBT violations by the Simple deflement C/s 129 (1) and an alternative charge of Indecent criminal justice system’ to this report for samples of cases which were assault on a boy under eighteen C/s 147 of the Penal Code Act Cap 120. ignored by the police UGANDA: ‘Where Do We Go for Justice?’ 39

Sammy S143, a transgender and paralegal Kelly M., told our researchers how he attending to LGBTI cases, decried the experienced homophobia against sexual institutionalized homophobia in the police. minorities at Kikajjo Police Station. He observed that his efforts to explain to the police offcers what being a transgender man “I feel to a large extent that the police means but they never wanted to listen. offcers are not well informed about the law regarding homosexuality. “I believe that the Police were biased They just search as much as they can against me because they could not to try to put people like me, with my understand what I meant when I said sexual orientation, behind bars. I think I was a transgender person. To their everyone shall be treated equally.” 146 understanding, you’re either male or female, because of the cultural norms In an interview with Apollo K., he narrated that they are accustomed to.” 144 to Chapter Four Uganda how he has experienced homophobia at the hands of the In an interview with Kim Mukisa and police. Jackson Mukasa, they told Chapter Four Uganda that during their trial, they applied “I have faced a lot of challenges as for bail. Kim said he was shocked when the being gay in Uganda, while I tried to trial Chief Magistrate ordered him to bring a stand up for human rights. One time, recommendation letter from the very Local in 2011, I was arrested and brought to Council (LC) Chairperson who led the anti- Mukono Police Station. I spent 3 days gay vigilante group that assaulted them at Mukono Police Station and was later during their arrest and a number of other released on a bond…….. It is hard to be stringent demands and processes ensued as gay in Uganda. The police in Uganda documented in another part to this report. are mainly homophobic.” 147

“In court, both of us felt very targeted Apollo said that after he was arrested, he was as the Chief Magistrate read out also forcefully detained in the cell of women our charges. Despite being arrested instead of men because of homophobia before the Anti-Homosexuality Law associated with police hearing that he was was passed, the courts treated us like gay. an example to that bill. There was too much homophobia all around us.” 145 “They (police offcers) told me that I would start to have sex with other inmates if they put me in the same police cell with men, and therefore I had to stay in a police cell for women.” 148 143 Real names withheld on request (pseudonym). He was arrested and detained at Kira Police Station in Namugongo in February 2014 on charges of impersonation and theft. The case was dismissed at the police station and no reasons were given 146 Chapter Four Uganda interview with Kelly M., Kampala (Uganda) January 23rd, 2015 144 Chapter Four Uganda interview with Sammy S., (pseudonym), Kampala (Uganda), February 3rd, 2015 147 Chapter Four Uganda interview with Apollo K., Kampala, (Uganda) February 2nd, 2015 145 Chapter Four Uganda interview with Kim Mukisa, Kampala (Uganda), January 20th, 2015 148 Ibid 40 UGANDA: ‘Where Do We Go for Justice?’

In his reply to the queries raised by Chapter According to the cases documented, it is Four Uganda as observed during this also observed that the DPP has apparently research, the DPP declined to condemn ignored his role of supervising the legality of the acts of parading suspects to the media police investigations, criminal investigations, at police stations and did not offer any and the other roles critical for a smooth ‘omnibus’ answer to the non-consensual functioning of the criminal justice system. and degrading medical examinations that Research fndings also revealed cases of are detailed in this report. This position unfair trials on the basis of sexual orientation underscores the level of institutionalized and gender identity associated with homophobia within the criminal justice provisions applicable to arrest and detention. system. Specifcally, the violations documented fall within the categories of arbitrary arrests and The DPP continues to use evidence that they prolonged detention in breach of the right to ought to reasonably believe was obtained personal liberty and the right to be brought through recourse to unlawful methods that promptly before a judicial offcer, denial of bear grave violations of the suspect’s human a chance to contact a lawyer or next-of-kin rights. Intrusive non-consensual inhumane in violation to the rights upon arrest, and anal and HIV medical examinations are assaults during investigations in violation of conducted on suspects and the same results their right to humane treatment. are used as evidence against the suspect during trial. Findings further revealed a common pattern of victims in these cases being subjected to As standard procedure, any well-intentioned inhumane and degrading treatment through prosecutor is expected to refuse to use such compulsory non-consensual anal and HIV evidence against anyone on the basis of medical examinations. No evidence exists on how it was procured, other than those who the fles reviewed by Chapter Four Uganda violated the rights of the victim to procure to suggest that the alleged victims gave their the same in the frst place. consent to undergo these intrusive medical experiments. Unfair trials of sexual minorities

Chapter Four Uganda documented cases of Unfair trials of victims resulting in unfair trials of suspects based on their sexual deportations from Uganda without being orientation or gender identity in Uganda. convicted by court were also recorded. None Research suggests that these unfair trials of these victims were given chance to appeal are directly linked with the perspective that against the deportation orders. sexual minorities are criminals and as such cannot be seen seeking justice. This denies In September 2012, a UK theatre producer them the right to an effective remedy. David Cecil Edward Hugh was arrested for performing a controversial149 play titled, ‘The Cases of abuses and violations against sexual River and the Mountain’ allegedly against the minorities being ignored by the criminal orders of the Media Council. justice system were recorded during this 149 The story of the play was based on a gay business man who research. was killed by his employees UGANDA: ‘Where Do We Go for Justice?’ 41

In August 14th, 2012, David had written to homosexuality after being found with the Uganda Media Council requesting for “obscene materials”. Like in David’s case, ‘appraisal and review’ of the play. In August the Director of Public Prosecutions dropped 29th, 2012, the Council replied ordering the charges against him without any clear David not to stage the play on grounds that explanations and deportation was shortly “the play depicts Uganda as a country full thereafter ordered by court. of intolerant and violent people who take the law into their own hands”150. The Council These arbitrary, discriminatory deportation further noted that homosexuality is “a crime decisions that fout procedural guarantees156 against morality”151 and that “such behavior subject sexual minorities to unfair trials. is immoral and culturally unacceptable (in Uganda)”152. The standard procedural guarantees violated include the right to be heard, the right to When David was produced in court, he was appeal to a higher authority, the right to charged with the offence of “disobedience remain pending an appeal, and the right to of lawful orders”153 but due to lack of enjoyment of all facilities to seek a remedy. ‘evidence’, the charges were dropped. Foreigners who can demonstrate a close attachment to a state are not supposed to be Surprisingly, shortly after the charges were deported unless all procedural guarantees dropped, court ordered that he be deported are fully complied with which in these cases, from Uganda. Immigration offcers arrested were not. (ICCPR, Article, 2, 3, 13, 12(4) & David and deported him from Uganda 26)157. where he reportedly has a girlfriend and two children.

In reaction to the deportation, a British foreign offce spokesman was quoted as observing that they were “concerned that he (David) was deported without being given an opportunity to challenge the deportation order through the Ugandan courts”154.

In January 2014, Bernard Randall155, another British man was deported from Uganda on orders of the court over alleged

150 Excerpts from the letter from Uganda Media Council addressed to David Cecil dated 29/08/2012 and duly signed by Goretti Nassanga and Pius Mwinganisa as Chairperson and Secretary to the Media Council respectively (Ref: MC/L/2/12) 156 ICCPR - articles 12, 13; Declaration on Non-Nationals - Ibid 151 article 7; Right of appeal - Decision No. 155/1983 of the UN Human 152 Ibid Rights Committee 153 Contrary to section 117 of the Penal Code Act 157 For further reading, see - E/CN.4/L.189/Rev.1 and E/CN.4/ SR.316,5 and the notes on A.S. v. Canada, Decision No. 68/1980 of Uganda ‘deports’ David Cecil, producer of gay play: http:// 154 the Human Rights Committee (Nowak’s CCCPR Commentary at 219); www.bbc.com/news/world-africa-21423496 Marafdou v. Sweden, Decision No. 58/1979 of the Human Rights 155 Entebbe Police Station, CRB 848/2013 Committee 42 UGANDA: ‘Where Do We Go for Justice?’

PART IV International, regional and national law standards

General State obligations Political Rights requiring States to prohibit The application of international human rights discrimination. law and the obligation of State parties that result from it are guided by the principles The Human Rights Committee has stated, of universality of human rights and non- ‘that the term ‘discrimination’…should discrimination. This is enshrined in the be understood to imply any distinction, Universal Declaration of Human Rights exclusion, restriction or preference which (UDHR), which provides that ‘all human is based on any ground such as race, colour, beings are born free and equal in dignity sex, language, religion, political or other and rights.’ International law provisions on opinion, national or social origin, property, non-discrimination and equal protection birth or other status, and which has the of the law guarantee the freedom from purpose or effect of nullifying or impairing discrimination. the recognition, enjoyment or exercise by all persons, on an equal footing, of all While the right to nondiscrimination protects rights and freedoms (emphasis added)’160. against discrimination in the enjoyment of other human rights, the right to equal Sexual orientation as a basis for non- protection of the laws is an autonomous discrimination right. It prohibits discrimination in law or The legal provisions under international in fact in any feld regulated and protected human rights treaties do not expressly by public authorities. Non-discrimination, cover discrimination on the basis of one’s together with equality before the law and sexual orientation. However, the grounds equal protection of the law without any enumerated in, for instance, article 26 of the discrimination, constitute a basic and general International Covenant on Civil and Political principle relating to the protection of human Rights, article 2 of the African Charter rights158. on Human and Peoples’ Rights are not exhaustive. As is clear from the words ‘such The Vienna Declaration and Programme of as’ and ‘other status’ in all these articles, the Action confrms that, ‘while the signifcance lists are illustrative only. of national and regional particularities and various historical, cultural and religious The UN Committee Against Torture, in backgrounds must be borne in mind, it is the General Comment No. 2, stated that ‘the duty of States, regardless of their political, principle of non-discrimination is a basic and economic and cultural systems, to promote general principle in the protection of human and protect all human rights and fundamental rights and fundamental to the interpretation freedoms’159. The duty to guarantee freedom and application of the Convention…States from discrimination is reiterated under article parties must ensure that, insofar as the 26 of the International Covenant on Civil and obligations arising under the Convention are concerned, their laws are in practice applied 158 General Comment No. 18, in United Nations Compilation of General Comments, p. 134, para. 1 159 A/CONF.157/23, para. 5. 160 Ibid Para 7 UGANDA: ‘Where Do We Go for Justice?’ 43

to all persons, regardless of . . . sexual The duty of State institutions particularly orientation, transgender identity …or any those involved in the criminal justice system other status or adverse distinction161. in Uganda to respect, uphold and promote human rights for all is derived from both the Most recently, the UN Committee on constitution and international human rights Economic, Social and Cultural Rights, which instruments which Uganda has ratifed. monitors implementation of the ICESCR, stated that ‘other status’ as recognized in African Commission for Human & Peoples’ article 2(2) includes sexual orientation” and Rights Resolution on non-discrimination gender identity162. The African Commission on Human and Peoples’ Rights Resolution on Protection In Zimbabwe NGO Human Rights Forum against Violence and other Human Rights v. Zimbabwe, the African Commission on Violations against Persons on the basis of Human and Peoples’ Rights observed that their real or imputed Sexual Orientation ‘together with equality before the law and or Gender Identity also condemns ‘the equal protection of the law, the principle of increasing incidence of violence and other non-discrimination provided under Article human rights violations, including murder, 2 of the Charter provides the foundation for rape, assault, arbitrary imprisonment and the enjoyment of all human rights…The other forms of persecution of persons on aim of this principle is to ensure equality the basis of their imputed or real sexual of treatment for individuals irrespective orientation or gender identity.’ of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, The resolution calls on States ‘to end all acts age or sexual orientation’163. of violence and abuse, whether committed by State or non-state actors, including by National Standard enacting and effectively applying appropriate Uganda has ratifed the above regional and laws prohibiting and punishing all forms of international human rights instruments and violence including those targeting persons incorporated the provisions in the national on the basis of their imputed or real sexual constitution. The principles of universality of orientation or gender identities, ensuring human rights (article 2(1), equality and non- proper investigation and diligent prosecution discrimination (article 21 (1) are espoused of perpetrators, and establishing judicial in the constitution. The duty of the states and procedures responsive to the needs of all its organs to protect, promote and uphold victims’164. human rights (article 20 (2) is also provided including the duties of all security organs to Standard for medical practitioners uphold human rights in the performance of In particular reference to the role of medical their duties (article 221). practitioners’ role within the criminal justice system, the Code of Professional Ethics 161 Committee Against Torture, General Comment 2, UN Doc. CAT/C/GC/2 24 January 2008, at para. 21. Committee on Economic, Social and Cultural Rights, General 162 Resolution on Protection against Violence and other Human Comment 20, UN Doc. E/C.12/GC/20, 10 June 2009, at para. 32. 164 Rights Violations against Persons on the basis of their real or imputed 163 Communication 245/2002 – Zimbabwe Human Rights NGO Sexual Orientation or Gender Identity Adopted at the 55th Ordinary Forum/Zimbabwe, 21st Activity Report, EX.CL/322(X), Annexure III at Session of the African Commission on Human and Peoples’ Rights in para.169 Luanda, Angola, 28 April to 12 May 2014 44 UGANDA: ‘Where Do We Go for Justice?’

for Medical and Dental Practitioners165 Services167, all intelligence services and the puts a mandatory requirement on medical national Security Council to observe and practitioners to respect the fundamental respect human rights and freedoms in the rights of a patient and forbids the willful performance of their function’. participation of a practitioner in any actions that violates human rights. This general obligation is also provided for in the Police Act. The Uganda Police The Code of ethics provides that ‘a Disciplinary Code of Conduct sets out practitioner shall not violate the human standards for police offcers while in rights of a patient, the patient’s family execution of their duty. On the values of or his or her care giver’ (Rule 4 (1). It non-discrimination and equal treatment, it forbids a practitioner from using ‘his or provides that, ‘a member of the (police) force her professional skills to participate in any shall treat humanely all persons at his or actions that lead to violations of human her disposal without discrimination’ 168. rights’ (Rule 4(2) (a), and to ‘report to Council if there has been a violation of These principles general refect international human rights’ (Rule 4(2) (b). standards of treatment of prisoners. According to the Principles and Guidelines The Code further requires medical and dental on the Right to a Fair Trial and Legal practitioners ‘not to carry out any specifc Assistance in Africa, ‘State shall ensure actions that constitute a violation of the that all persons under any form of detention bill of rights enshrined in the constitution or imprisonment are treated in a humane of Uganda and international human rights manner and with respect for inherent dignity law’166. of the human person’169.

These standards are in consonance with The International Human Rights Standards international medical practice and are for Law Enforcement confrms this by considered sacred in the medical profession. stating that, ‘all police action shall respect They apply to all medical and dental the principles of legality, necessity, non- practitioners whether in the private practice discrimination, proportionality and or in the service of the police. humanity’ 170.

Standard for law enforcement offcers The Universal Declaration of Human Rights, The Ugandan constitution provides the ICCPR, UN Standard Minimum Rules for general standard for law enforcement offcers the Treatment of Prisoners, and the Torture to respect, promote and uphold human rights.

The constitution provides that ‘it shall be 167 (Article 221 – see also article 20 (2) which requires all organs and agencies of government and all persons to respect, uphold and the duty of the Uganda Peoples’ Defence promote human rights) Forces and any other armed force established 168 (Schedule to section 44 of the Act). in Uganda, the Uganda Police Force and 169 Principles and Guideline on the Right to a Fair Trial and Legal any other police force, the Uganda Prison Assistance in Africa, M (7) (a), DOC/OS(XXX)247, page 12 170 (International Human Rights Standards for law Enforcement”, by the United Nations High Commissioner for Human Rights http:// www.ohchr.org/Documents/Publications/training5Add1en.pdf - Code Available at http://www.umdpc.com/uploads/codeofethics.pdf 165 of Conduct, articles 2, 3, 5, 7 and 8; Principles on Force & Firearms, 166 (Rule 4(2) (c). preamble and principles 2, 4, 5, 9, 11, 13, 14, 15, 16, 24, 25 and 26 UGANDA: ‘Where Do We Go for Justice?’ 45

Convention all demand for the respect of inherent human rights of detainees by explicitly condemning any acts that amount to subjecting a detainee to torture or to cruel, inhumane or degrading treatment or punishment or any form of violence or threats.

PART V General Recommendations

To the Uganda Police

• Immediately cease the use of intrusive, • Guarantee sexual minorities right non-consensual, inhumane and degrading to privacy and confdentiality while anal/rectum examinations of persons of reporting abuses to the police. Their different sexual orientation and gender sexual orientation per se must not be a identity as a means of investigations. crime. • Provide counseling services and obtain • Institute an investigation into assaults of patient consent prior to the conduct sexual minorities suspects on the basis of medical procedures during the of their sexual orientation by the police investigation of alleged crimes. offcers at police stations and make such • Immediately issue practice directives for report public. the conduct of investigations of sexual • Discipline and refer for criminal offences to ensure the observance of prosecution police offcers who engage in fundamental rights of both victims and assaulting of LGBTI suspects and other suspects. forms of homophobic treatment while at • Urgently investigate all allegations of police installations. refusal/disregard to investigate cases • Investigate and discipline offcers reported by persons of different sexual engaging in the abuse of the criminal orientations and gender identity to the justice process to blackmail and extort police and ensure that such cases are duly money and property from sexual investigated and prosecuted minorities. • Stop parading arrested suspects to the • Train offcers handling LGBTI media; particularly LGBTI individuals related cases on the principle of non- who face increased violence as a result of discrimination on the basis of sexual such parade. orientation and gender identity. 46 UGANDA: ‘Where Do We Go for Justice?’

To the Directorate of Public Prosecutions • Direct the immediate cessation of the • Take all steps to prevent abuse of legal use of intrusive non-consensual and process occasioned by non-consensual inhumane medical examinations results medical experiments, media parades by as evidence to prosecute suspects in the police etc. Take a stand on the same. ‘unnatural offences’. • Ensure that the police investigate and • Take all necessary steps to ensure that forward the fles for prosecution in cases all offcers responsible in procuring such of rights abuses against sexual minorities. evidence through torture & inhumane • Issue guidelines to State Attorneys on the treatment are brought to justice. supervision of investigations to ensure • Document and make public annual compliance with human rights standards statistics of cases against LGBTI by police offcers during investigations community.

To the Courts of Judicature • Interrogate how the evidence used by the • Ensure that all accused sexual police and the DPP to incriminate and minorities receive a fair, speedy, and prosecute sexual minorities was procured impartial hearing without any form with a view of rejecting adducing of of discrimination on basis of sexual any evidence that was obtained through orientation or gender identity. torture, inhumane and degrading means. • Order for prompt investigations of any • Conduct vigorous review on the legal abuses or rights violations against sexual reason for the arrest of the suspect and minorities brought to the attention of the generally safeguard his or her well being court. while in detention. • As soon as practical, dismiss all cases • The trial chief magistrates’ conduct in against sexual minorities that fall short of these trials should not be swayed by the demonstrating a prima facie case. homophobic public opinion.

To the media • Immediately cease the outing and • Develop in-house policies that promote publication of police parades of suspects non-discrimination on the basis of sexual particularly of persons of different sexual orientation or gender identity. orientation and gender identity.

To the Civil Society Organizations

• Develop advocacy strategies targeting • Develop manuals and conduct trainings criminal justice stakeholders with an aim on the rights of sexual minorities within of addressing cases of discrimination the criminal justice system. and other violations suffered by sexual minorities.