Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and imprisonment in : A case study of

December 2019

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala

December 2019

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and iii imprisonment in Uganda: A case study of Kampala Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala

December 2019

A publication of Human Rights Awareness and Promotion Forum (HRAPF) Plot 390 Professor Apollo Nsibambi Road P.O. Box 25603 Kampala Tel: +256 414 530 683 and +256 312 530 683 Toll free line: 0800 130 683 Email: [email protected] Website: www.hrapf.org Facebook: Human Rights Awareness and Promotion Forum - HRAPF - Uganda Twitter: @hrapf_uganda © Human Rights Awareness and Promotion Forum, 2019

Human rights abuses and violations against Lesbian, Gay, iv Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala ACKNOWLEDGEMENTS

HRAPF acknowledges the contribution of all persons who participated in this study. To all the respondents who shared with us their personal stories and their views, we appreciate. We acknowledge the role of Francis Tumwesige Ateenyi who led the team that collected data and drafted the report. HRAPF also acknowledges the support of the Right Here Right Now Consortium which provided funding for this study.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and v imprisonment in Uganda: A case study of Kampala PROJECT TEAM

Dr. Adrian Jjuuko Lead Researcher and Principal Investigator

Mr. Francis Tumwesige Ateenyi Researcher

Ms. Linette du Toit Researcher

Mr. Edward Ssemambo Researcher

Human rights abuses and violations against Lesbian, Gay, vi Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala TABLE OF CONTENTS

ACKNOWLEDGEMENTS v PROJECT TEAM vi TABLE OF CONTENTS vii LIST OF ACRONYMS x

EXECUTIVE SUMMARY xii

1. INTRODUCTION 1 1.1 Background to the study 1 1.2 Problem statement 2 1.3 Objectives of the study 3 1.3.1 Main objective 3 1.3.2 Specific objectives 3 1.4. Research questions 3 1.5 Study rationale / justification 4 1.6 Methodology 4 1.6.1 Study design 4 1.6.2 Time scope 5 1.6.3 Study location 5 1.6.4 Study population and data collection 5 1.6.5 Sampling 6 1.7 Research methods and tools 7 1.8 Literature Review 8 1.9 Ethical considerations 12 1.10 Challenges 12

2. LEGAL, POLICY AND INSTITUTIONAL SAFEGUARDS FOR LGBT PERSONS IN DETENTION AND IMPRISONMENT IN UGANDA 13 2.1 Introduction 13 2.2 Legal safeguards under international and regional instruments 13

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and vii imprisonment in Uganda: A case study of Kampala 2.3 Domestic laws protection of LGBT persons in detention or prison 19 2.3.1 Constitutional protections 19 2.3.2 Legislative safeguards 24 2.4 Institutional and policy initiatives aimed at improving human rights in detention and prison facilities in Uganda 28 2.4.1 Human Rights initiatives by the Uganda Police Force 28 2.4.2 Human Rights initiatives by Uganda Prisons 30 2.5 Conclusion 31

3. MANIFESTATIONS AND TRENDS OF HUMAN RIGHTS VIOLATIONS SUFFERED BY LGBT PERSONS IN DETENTION AND IMPRISONMENT 32 3.1 Introduction 32 3.2 Respect for human dignity and freedom from torture and cruel, inhuman and degrading treatment or punishment 32 3.2.1 Manner of arrest, treatment and transportation by Police 32 3.2.2 Conditions in police detention 35 3.2.3 Conditions and treatment at Prisons 36 3.2.4 Medical examinations 37 3.3 The right to personal liberty 38 3.3.1 Unlawful detention in Police custody beyond the constitutional 48 hours 38 3.3.2 Conditions for grant of police bond from police custody 39 3.3.3 Conditions for grant of bail from Prisons custody 40 3.3.4 Legal representation in Police custody 40 3.3.5 Legal representation in prisons 41 3.3.6 Charges and the right to be informed of the reason for arrest 41 3.4 Equality and non-discrimination 42 3.4.1 Equality and discrimination in Police custody 42 3.4.2 Equality and discrimination in prisons 43 3.5 The right to property 44 3.5.1 Loss of personal property in police custody 44 3.5.2 Loss of property in prisons 45

Human rights abuses and violations against Lesbian, Gay, viii Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala 3.6 Conclusion 46

4. CONCLUSIONS AND RECOMMENDATIONS 47 4.1 Introduction 47 4.2 Trends analysis 47 4.3 Conclusions 48 4.4 Recommendations 49

REFERENCES 53

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and ix imprisonment in Uganda: A case study of Kampala LIST OF ACRONYMS

ACHPR African Charter on Human and Peoples' Rights ACP Assistant Commissioner of Police/ Assistant Commissioner of Prisons. ACRWC African Charter on the Rights and Welfare of the Child AHA Anti-Homosexuality Act, 2014 AIDS Acquired Immunodeficiency Syndrome ASP Assistant Superintendent of Police BPTP Basic Principles for the Treatment of Prisoners Cap Chapter (in the Laws of Uganda 2000 Edition) CAT UN Convention Against Torture, and other forms of Cruel, Inhuman and Degrading Treatment or Punishment CEDAW UN Convention on the Elimination of All Forms of Discrimination Against Women CPS Central Police Station CPCA Criminal Procedure Code Act Cap 116 CSCHRCL Civil Society Coalition on Human Rights and Constitutional Law CSO Civil Society Organisation CRC UN Convention on the Rights of the Child DPC District Police Commander EOC Equal Opportunities Commission FARUG Freedom and Roam Uganda FGD Focus Group Discussion FHRI Foundation for Human Rights Initiative HIV Human Immunodeficiency Virus HRAPF Human Rights Awareness and Promotion Forum HRW Human Rights Watch ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ID Identity Card IGG Inspector General of Police

Human rights abuses and violations against Lesbian, Gay, x Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala JLOS Justice, Law and Order Sector KIIs Key Informant Interviews LC Local Council LGBT Lesbian, Gay, Bisexual and Transgender MCA Magistrate Courts Act Cap 16 NGO Non-Governmental Organisation OC Officer in Charge (Uganda Police or Uganda Prisons) OC CID Officer in Charge, Criminal Investigations Directorate (Uganda Police) OHCHR UN Office of the High Commissioner for Human Rights PCA Penal Code Act Cap 120 PSU Professional Standards Unit RPC Regional Police Commander/Regional Prisons Commander SI Statutory Instrument SMR Standard Minimum Rules for the Treatment of Prisoners SMUG Sexual Minorities Uganda SP Superintendent of Police TASO The Aids Support Organisation TIA Trial on Indictments Act Cap 23 UDHR Universal Declaration on Human Rights UGX Uganda Shillings UHRC Uganda Human Rights Commission ULRC Uganda Law Reform Commission ULS Uganda Law Society UN United Nations UNCST Uganda National Council for Science and Technology UPDF Uganda People’s Defence Force UPF Uganda Police Force UPS Uganda Prisons Service URSB Uganda Registration Services Bureau YRF Youth on Rock Foundation

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and xi imprisonment in Uganda: A case study of Kampala EXECUTIVE SUMMARY

Although Uganda’s Constitution criminal justice system: Uganda incorporates extensive human rights has put in place legal, policy and guarantees and protections, section institutional safeguards for the 145 of the Penal Code Act still protection of human rights and maintains the colonial criminalisation freedoms of people in detention of carnal knowledge against the and imprisonment incorporated order of nature. This provision, in the Constitution, national coupled with a 2005 Constitutional legislation and the international amendment which prohibits same- and regional treaties which it sex marriages, provides a justification signed and ratified. In addition to for the legal and social persecution, the binding legal provisions and marginalisation and discrimination of obligations, Justice Law and LGBT people. The existence of such Order Sector (JLOS) institutions contradictions in the law and practice including the Uganda Police has accounted for well documented Force and the Uganda Prisons human rights violations suffered by Service have adopted and are LGBT people at the hands of criminal implementing administrative and justice institutions in Uganda. The structural initiatives aimed at objective of the studywas to identify promoting the respect for and the human rights abuses and observance of human rights in violations suffered by LGBT persons Uganda. The Uganda Police who are detained or imprisoned Force established the Human within the Ugandan criminal justice Rights Department and adopted system. the Human Rights Policy 2019. Uganda Prisons also established The research, which used qualitative the Human Rights Division and tools and methods, focused on created Human Rights Kampala as a case study. Existing Committees in every prison literature was reviewed, and data across the country. There are collected through three Focus Group also regular human rights Discussions and 34 Key Informant trainings for the staff of both the Interviews (KIIs) involving LGBT Uganda Prisons Service and people, police officers, civil society Uganda Police Force. Although organisational leaders and lawyers these protections arguably apply both in private practise and the legal to LGBT persons as their aid space. language applies to all persons, The main findings of the study are: this can no longer be taken for granted as the High Court has 1) Uganda’s laws and policies do not twice used the criminal laws specifically protect LGBT persons prohibiting consensual same-sex against violations within the relations to trump constitutional

Human rights abuses and violations against Lesbian, Gay, xii Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala protections of the rights of LGBT cells. LGBT detainees suffered persons. Also, the non-express from discrimination based on mention of protections for LGBT their sexual orientation and persons has been used as a gender identity. Taunts, ridicule, justification to exclude them threats and occasional from protection and to deny humiliation are regularly directed them recourse when they suffer at LGBT inmates by both police violations in the criminal justice and prison officials and other system. inmates. Such actions take the form of nicknames such as 2) There is a trend towards human sodomy, sodomy tycoon, rights-based detention and abasiyazi, among others. The imprisonment practices embraced right to property is another often by both the police and the prisons: violated one with property such Both the Uganda Police Force as mobile phones, laptops and and the Uganda Prisons Service money getting confiscated at UPS are working towards police. The Police Professional enforcing detention and Standards Unit is no longer imprisonment practices that effective in handling complaints respect human rights. This has against police officers who contributed to the reduction of violate the rights of LGBT violations suffered by LGBT persons and other detainees and persons, but there is still a long prisoners with impunity. way to go to realise full protection of LGBT people in police and 4) LGBT persons in prison face prisons custody. discrimination and abuse of their dignity: Although the prisons 3) LGBT persons in police detention system treats LGBT persons suffer violations attributable better than the police, serious mainly to their sexual orientation: concerns remain. Taunts, ridicule Human rights violations targeting and humiliation are common by LGBT persons are prevalent in prisons officials, and by fellow police custody, and these are prisoners. Transgender persons related to their sexual orientation are placed in either male or and gender identity as the police female cells and this exposes regards persons arrested with a them to sexual violence and connection to homosexuality as abuse. ‘serious offenders’ and feel the need to show an example to others. Some of the commonly abused rights include the right to liberty with arrests characterised by violence and abuse, disregard of the 48-hour constitutional limit of detention in police cells, and inhuman conditions in police

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and xiii imprisonment in Uganda: A case study of Kampala Recommendations held in custody in order to prevent violence or sexual abuse against them. To the Uganda Police Force vii) The Police should partner with i) Avoid arbitrary arrests of LGBT organisations that work on LGBT persons simply on the basis of issues/the Uganda Human their suspected sexual Rights Commission in order to orientation. Arrests should only hold more human rights trainings be done where there is and sensitisations on LGBT reasonable suspicion that an persons. offence has been committed. ii) The Human Rights and Legal Directorate should spearhead To the Uganda Prisons Services the development of guidelines / i) Develop guidelines/standards standards that specifically guide on the treatment of imprisoned on the treatment of LGBT persons who identify as LGBT. persons in Police detention. ii) The practice of undressing and iii) The Human Rights and Legal humiliating inmates should be Services Directorate should prohibited and replaced with ensure that the UPF Human more humane search procedures. Rights Policies and Organs are permeated within the Force all iii) Efforts should be made to the way to the grassroot police provide specialised imprisonment stations and posts across the facilities to transgender people country. so as to preserve their dignity and privacy. iv) The Police Professional Standards Unit should be iv) The practice of revealing the revamped and fully staffed and sexual orientation or gender facilitated to handle disciplinary identity to inmates should stop complaints against Police in the interest of protecting Officers. Its decisions and detainees from violence/sexual sanctions should also be abuse by other detainees. enforced by the Police Authority. v) The practice of revealing the sexual orientation or gender To Parliament identity to other detainees i) Amend the Penal Code to repeal should stop in the interest of section 145 which criminalises protecting detainees from same-sex sexual conduct, as well violence/sexual abuse by other as sections 167 and 168 which detainees. prohibit vagrancy conduct, which vi) More attention should be paid to form the basis for most arrests of where transgender detainees are LGBT persons.

Human rights abuses and violations against Lesbian, Gay, xiv Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala ii) Parliament should enact a law to The Ministry of Internal Affairs prohibit all forms of violence and discrimination on any ground, The ministry should issue a policy including sexual orientation, directive prohibiting all forms of against people in detention and violence and discrimination against imprisonment in Police, Prisons prisoners and detainees, and and any other authorised places specifically LGBT detainees. of detention in Uganda.

The Uganda Human Rights The President Commission i) Issue a directive to the police to i) Prioritise the investigation of stop arresting people for being cases involving violations of rogue and vagabond, as well as LGBT persons as they are a for carnal knowledge against the minority and vulnerable group. order of nature. ii) Continue training police officers ii) Direct the Police and Prisons to and prisons officials on the treat LGBT persons in their treatment of LGBT persons in custody with the dignity detention. appropriate to all human beings. iii) Raise issues of violation of the rights of LGBT persons in detention in their annual report The Minister of Justice and to parliament. Constitutional Affairs/Attorney General i) Initiate a process to repeal the The Equal Opportunities sections 145, 146, 167 and 168 Commission of the Penal Code by presenting i) Investigate reports of a white paper to cabinet and discrimination against LGBT subsequently a bill to parliament. persons while in police detention ii) Initiate a process to repeal Article or in prions and produce reports. 31(2a) of the Constitution which ii) Raise issues of violation of the prohibits same-sex marriage as it rights of LGBT persons in fuels discrimination against detention in their annual report LGBT people and provides a to Parliament. legal justification to the existing homophobia.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and xv imprisonment in Uganda: A case study of Kampala The Uganda Law Reform To mainstream Civil Society Commission These should do the following: Make recommendations for the repeal of sections 145, 146, 167 and i) Make use of the provisions of 168 of the Penal Code as they are the Human Rights (Enforcement) the basis of violation of the rights of Act 2019, in particular section 3 LGBT persons. which enables filing of a petition on behalf of another person whose human rights have been violated as well as in the public To LGBT organisations interest, and section 10 which i) Document violations against provides for individual LGBT persons in detention responsibility for violations of and imprisonment and share human rights as well as those in these with the Uganda Police the Prohibition and Prevention Force and the Uganda Prisons of Torture Act which also creates Services. individual responsibility in order to bring errant officers of the ii) Partner with the Uganda Police Uganda Police Force and/or the Force and the Uganda Prisons Uganda Prisons Service to book. Service to conduct trainings and sensitisations on the rights of ii) Support LGBT organisations to LGBT persons, especially geared document violations against towards mid-level and lower LGBT persons in detention/ level officials of UPS and UPF. It imprisonment. is the lower and mid-level iii) Bring complains before the officials who directly and Professional Standards Unit of regularly handle detainees and the Police and before the Uganda prisoners while the OCs, OC Prisons Service on violations CIDs and DPCs are for the most against LGBT persons. They part not involved in day-to-day should also ensure proper follow lives of the inmates. up. iii) Partner with the Uganda Police iv) Extend legal support to LGBT Force and the Uganda Prisons persons Service to draft standards for the treatment of LGBT persons in the custody of UPF and UPS.

Human rights abuses and violations against Lesbian, Gay, xvi Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala 1. INTRODUCTION

1.1 Background to the all persons including the right to study equality, the right to liberty, the right to a fair trial, freedom from LGBT people endure abuse and discrimination, freedom from torture, rights violations at the hands of inhuman and degrading treatment or criminal justice institutions including punishment, among others.2 Despite physical violence and humiliation, this, a number of laws remain on the verbal abuse, arrest and detention law books that discriminate against without charge, extortion, denial of LGBT persons and make them police bond, being charged with susceptible to human rights non-existing offences, detention violations. Key among them is beyond the 48-constitutional limit, section 145 of the Penal Code Act among others.1 These violations are Cap 120 which criminalises what is well recorded by Human Rights described as ‘having carnal Awareness and Promotion Forum knowledge against the order of (HRAPF) and the Consortium on nature’ and article 31(2a) of the Monitoring Violations Based on Sex Constitution which prohibits same- Determination, Gender Identity and sex marriages. Several other Sexual Orientation in their violations provisions in the Penal Code and reports for the years 2014, 2015, other laws target LGBT people 2016, 2017 and 2018. The violations including sections 146 on attempt to reports show a worrying trend of commit unnatural offences, section persistent violations of the rights of 148 on indecent practices and LGBT people at the hands of criminal sections 167 and 168 prohibiting justice institutions. idle and disorderly and vagrancy This state of affairs is a far cry from conduct. This has been interpreted the guarantees of legal and to warrant and sanction all forms of constitutional protections provided abuses against LGBT persons. For for under the existing constitutional instance, the High Court has upheld framework. Chapter 4 of the the stopping of skills training 3 Constitution protects the workshops for LGBT persons, and fundamental rights and freedoms of refusal to register LGBT organisations

1 The Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation “Uganda Report of Violations Based on Gender Identity and Sexual Orientation” (2015) accessed on 21t July 2019 at https://hrapf.org/index.php/resources/ violation-reports/31-15-02-22-lgbt-violations-report-2015-final-2/file. 2 Chapter Four of the Constitution of Uganda. 3 Jacqueline Kasha and Others vs. Attorney General and Rev. Fr. Peter Lokodo (Lokodo case), High Court Civil Division Miscellaneous Cause No. 33 of 2012 accessed at https://ulii.org/ug/ judgment/high-court-civil-division/2014/85.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 1 imprisonment in Uganda: A case study of Kampala on the grounds that such activities 1.2 Problem statement by LGBT people are illegal basing on section 145. Such acts and the fact Uganda is legally and socially hostile that they are upheld by the High to LGBT persons.4 A 2013 Pew Court have normalised the violation Research Centre survey found that of the rights of LGBT persons within 96% of the Ugandan population the criminal justice system. considered homosexuality as conduct which is unacceptable.5 This Unlike other groups of people, LGBT may be attributable to both the persons are affected by the hostile legal regime and social criminal law and its extended environment which are informed by interpretation of the prohibition of conservative religious and cultural same-sex relations. This makes attitudes and practices. Although them more susceptible to being the country has a progressive arrestedand thus processed constitution which guarantees the through the criminal justice system rights of all persons and groups, it for offencesrelated to their sexuality. sits atop a raft of regressive They are usually arbitrarily arrested discriminatory penal and other without any evidence to support legislations which are interpreted, the reason for their arrest, and they applied and enforced against LGBT face various violations arising out of people. these arrests. They are also arrested for committing offences not related With a largely conservative and to their sexual orientation or gender moralistic public cheering on, actors identity. The next step after arrest is in the criminal justice space including police officers and prisons staff often detention in police cells, and eventually depending on how the find extra motivation to ‘save’ society case proceeds, imprisonment on from such persons. This is often done by subjecting LGBT persons to remand or upon conviction. illegal detention without charge, public humiliation, denial of basic This study sought an in-depth rights such as access to legal services understanding of the violations and deprivation of due process.6 experienced by LGBT persons in Their plight is exacerbated by both police detention and in prisons.

4 A Jjuuko ‘The incremental approach: Uganda’s struggle for the decriminalization of homosexuality’ In C Lennox & Waites (eds) Human Rights, Sexual Orientation and Gender Identity the Commonwealth: Struggles for Decriminalization and Change. Institute of Commonwealth Studies, School of Advanced Study, University of London, (2013) 381-408. 5 Pew Research Centre ‘The global divide on homosexuality: Greater acceptance in more secular and affluent countries’ (2013) http://www.pewglobal.org/files/2013/06/Pew-Global- Attitudes-Homosexuality-Report-FINAL-JUNE-4-2013.pdf (accessed 28 March 2018). 6 The Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation; Uganda Report of Violations Based on Gender Identity and Sexual Orientation, (2015) accessed on 21t July 2019 at https://hrapf.org/index.php/resources/ violation-reports/31-15-02-22-lgbt-violations-report-2015-final-2/file. Similar reports for 2014 and 2016 show the same trend.

Human rights abuses and violations against Lesbian, Gay, 2 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala institutional shortcomings in the 1.3.2 Specific Objectives justice sector such as corruption, 1. To ascertain the legal safeguards over-crowded detention facilities, for the protection of the human underfunding, ill-educated and ill- rights of LGBT people in paid staff, and lack of basic social detention and imprisonment in services. Moreover, LGBT people are Uganda. particularly vulnerable to abuses and violations because of their non- 2. To examine the human rights heteronormative and non-traditional abuses faced by LGBT persons in expressions of sexuality and gender.7 detention and imprisonment in The risks are even higher for Uganda. transgender people who face specific 3. To analyse the trends in human challenges with placement within rights abuses suffered by LGBT detention facilities.8 persons in detention and Thus, LGBT persons who are imprisonment in Uganda. detained or imprisoned face 4. To make recommendations on violations that arise due to their specific actions required to bring sexual orientation and gender Uganda’s criminal justice system identity. The nature of these on detention and imprisonment violations has however not been of LGBT persons in conformity exhaustively explored and thus the with human rights standards. need for a study that seeks to understand the nature of these violations in details. 1.4. Research questions The study seeks answers to the 1.3 Objectives of the following questions: study 1. What are the legal safeguards for the protection of the human 1.3.1 Main Objective rights of LGBT people in To identify the human rights abuses detention and imprisonment in and violations suffered by LGBT Uganda? persons who are detained or imprisoned within the Ugandan 2. What is the nature of human criminal justice system. rights violations and abuses suffered by LGBT persons who are detained and imprisoned

7 African Commission on Human and Peoples Rights (ACHPR) “Report of the Mission of the Special Rapporteur on Prisons and Conditions of Detentions in Africa to Uganda” (2002) available at http://www.achpr.org/files/sessions/33rd/mission-reports/uganda/achpr33_ misrep_specmec_priso_uganda_2001_eng.pdf, accessed on 21st July 2019. 8 Association for the Prevention of Torture and Penal Reform International; LGBTI Persons deprived of their liberty, a framework for preventing monitoring (2015 Edition), https://www. apt.ch/content/files_res/thematic-paper-3_lgbti-persons-deprived-of-their-liberty-en.pdf.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 3 imprisonment in Uganda: A case study of Kampala within the criminal justice system in Uganda? 1.6 Methodology 3. What are the trends of human rights violations and abuses 1.6.1 Study design suffered by LGBT persons who are detained and imprisoned in The study sought to assess impact Uganda? and trends through in-depth analysis of primary and secondary data. It is a 4. What are the specific actions qualitative study designed to explore required to bring Uganda’s and describe the human rights criminal justice system affecting abuses and violations suffered by LGBT persons in detention and LGBT persons who are detained and imprisonment in conformity with imprisoned within the criminal human rights standards? justice system in Uganda. As such, the qualitative approach and methods were employed for the 1.5 Study rationale/ study. There were no pre-set justification theories and assumptions which guided the research, instead all There is an existing literature gap as conclusions were derived from far as the human rights plight of analysis of the data collected. Both LGBT people in detention and secondary and primary data was imprisonment in Uganda is collected. Secondary data was concerned. This study seeks to not collected from review of existing only fill that void but also steer the literature derived from publications, attention of the public, policy makers, legislations, the international and civil society and law enforcement regional human rights instruments agencies towards the issue of and principles, policies, official violations faced by LGBT people in reports, reports of other studies, and detention and imprisonment. To this any other literature whether in soft end, the findings of the study will or hard copies, while primary data inform and guide advocacy, was collected through focus group sensitisation and legal and policy discussions and Key Informant reform efforts among criminal justice Interviews (KIIs). institutions in Uganda. The study covered a total of 34 The study also builds on earlier individual interviews with LGBT studies undertaken by HRAPF persons, leaders of LGBT focused exploring the reality of LGBT people civil society organisations, officers of in relation to the law, human rights the Uganda Police Force, officers of and access to justice. This study is the Uganda Prisons Service, human intended to provide another in- rights lawyers and paralegals. Three depth dimension and understanding Focus Groups Discussions (FGDs) of the broader issue of sexual consisting of 6-8 participants were orientation and the law in the socio- conducted. A separate FGD was political context of Uganda. conducted for Lesbians and Bisexual

Human rights abuses and violations against Lesbian, Gay, 4 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala women, Gays and Bisexual men and 1.6.4 Study population and data Transgender people. collection Data was collected through Focus 1.6.2 Time scope Group Discussions and Key Informant Interviews (KIIs). The The study covers the period of the study population comprised of 34 last ten years, that is, 2009 to 2019. individual respondents drawn from LGBT persons, LGBT organisational leaders, police officers, prison 1.6.3 Study location officers, lawyers both in private The study adopted a case study practice and legal aid service, and approach focusing on Kampala as paralegals working with LGBT the selected case study. Kampala is people. the capital city of Uganda and by far the largest and most socially diverse 1. FGDs: Three FGDs were held city in Uganda. Kampala had a with persons who have been population of 1,507,080 according arrested and detained or to the 2014 National Population and imprisoned; one with Gay and Housing Census.9 It also has a Bisexual men, another with significant LGBT presence with an transgender persons, and the active social life.10 It has been and third with Lesbian and Bisexual remains the epicenter of LGBT rights women. Each FGD consisted of activity including persecution, 6-8 participants. The organisation prosecution, activism, litigation and and selection of FGD participants research. The study covered all the was deliberate to ensure five administrative divisions of representation of the different Kampala: Central, , communities within the LGBT , and , and movement. collected both primary and 2. KIIs: A total of 34 interviews secondary data covering all the five were held with KIIs as follows: divisions. However, due to the close proximity with Wakiso district, which a) Ten LGBT persons who have geographically encircles and shares been arrested before, at least an overlapping lifestyle with two who identify as lesbian, two Kampala, some police stations and as gay, two as bisexual, two as prisons located in Wakiso but serving transgender women, two as Kampala were also included. transgender men.

9 Uganda Bureau of Statistics, The national population and housing census 2014 – main report (2016) 9 https://www.ubos.org/wp-content/uploads/publications/03_20182014_National_ Census_Main_Report.pdf. 10 P Kajubi, MR Kamya, H Fisher Raymond etal ‘Correlates of unprotected receptive anal intercourse among gays and bisexual men in Kampala, Uganda” available at https://www. researchgate.net/publication/26266262_Correlates_of_Unprotected_Receptive_Anal_ Intercourse_Among_Gay_and_Bisexual_Men_Kampala_Uganda accessed on 20th August 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 5 imprisonment in Uganda: A case study of Kampala b) Five leaders of civil society 1.6.5 Sampling organisations working on issues Participants in the study were of access to justice for LGBT chosen through purposive and persons. snowball sampling methods. These were used to select specific c) Five lawyers who work for institutions and respondents for organisations providing legal inclusion in the study. The use of the services. These were drawn from purposive sampling was guided by both organisations providing the preliminary literature review and legal aid services to LGBT mapping which led to specific persons and mainstream legal targeted organisations/institutions aid service providers such as that are most relevant to the study. Justice Centres. Further, the nature of this research d) Five community paralegals who which sought to deeply investigate have handled LGBTI cases. and understand the impact and trends of human rights abuses and e) Four Police officers at the level violations suffered by LGBT persons, of Officer in Charge, Criminal justified the use of purposive Investigations Department (OC sampling which is more suited for CIID) from five major police this kind of research.11 Purposive stations in Kampala namely: sampling was used to select key Kawempe, , Kira informants among police, prisons, Road, , Old Kampala lawyers and LGBT organisational and Police stations. leaders. f) The Head of the Human Rights On the other hand, snow-ball Department of the Uganda sampling was preferred to select Police Force LGBT respondents whereby initial g) The Head of the Human Rights respondents were asked to identify Unit of the Uganda Prisons and nominate more who were Service eligible to participate in the study. h) Three lawyers in private practise Both purposive and snowball who have handled LGBTI cases. sampling techniques were preferred due to the fact that the LGBT population is largely discreet due to social stigma and legal impediments and can only be accessed through penetrating their social circles.

11 MN Marshall 'Sampling for Qualitative Research Practice' (1996) 13.

Human rights abuses and violations against Lesbian, Gay, 6 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala 1.7 Research methods Interview guides were developed and tools and used for interviews with key informants to facilitate consultative The study employed methods and and interrogative discourses. For tools which seek to investigate the the same reason, interview guides, context, system and legal and specially designed to facilitate a institutional framework as well as lively exchange of ideas and views, the impact and trends of human were used during FGDs. For each rights violations of LGBT people in FGD, a prior agenda for the meeting detention and imprisonment in was prepared to guide the meeting Uganda. Thus, the study was carried to achieve its specific objectives. out in a participatory manner involving interviews with KIIs and The research tools were pretested at drawing analyses of existing the Chief Magistrate’s Court at literature, legislation, court records. Mengo and at Lubaga Police Post. During the study, both secondary The data collected was transcribed, and primary data was collected and coded and reviewed in accordance analysed using qualitative methods with the objectives of the study. and tools of data collection. Coding was done thematically following key themes which formed Secondary data was collected using the premise for interpretation. The the desk-based approach by way of process of data analysis was done identifying, compiling, reviewing and continuously throughout the critically analysing the relevant fieldwork. At the end of each day, legislation and case law as well as the notes taken were checked to publications such as international ensure consistency and accuracy human rights instruments and after which a thorough analysis of principles, reports, literary journals ideas, experiences and viewpoints and online materials. The search for was carried out. A more secondary data was guided by the comprehensive analysis of the overall and specific objectives and interview scripts and field notes was sought to answer the specific done through both inductions and questions posed. deductions of the themes within the data. Primary data was collected through To capture the feelings, emotions face-to-face KIIs and FGDs. The and attitudes of the respondents on researcher also engaged beyond the subject under investigation, in verbal responses and observed some instances direct quotations demeanor, attitude, physical features and statements were extracted and such as injuries, scars, etc, and other recorded. There were follow up observable data sources. The gaps inferences and questions to the identified during the study shaped interviewees to verify the data. the basis for deeper interactions with key informants and other target respondents.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 7 imprisonment in Uganda: A case study of Kampala 1.8 Literature Review terms of nutrition, sanitation and overcrowding.15 The study, which Prison conditions and treatment of was carried out in 16 different prisoners and detainees have been prisons in Uganda, also found that studied before in Uganda. A 2017 thousands of prisoners are forced to study by the Foundation for Human engage in hard labor in ways that are Rights Initiative (FHRI) titled Justice contrary to the international Delayed is Justice Denied; the Plight of standards on how prison labor may 12 Pre-Trial Detainees in Uganda be used.16 It highlighted the fact that represents one of the most prisoners are extremely vulnerable comprehensive attempts to to abuse by wardens and other investigate the conditions of people prisoners.17 Male prisoners are in state detention in Uganda. Its denied condoms, even in the face of findings show that 52% of the prison irrefutable evidence that male population constitute pre-trial prisoners do have sex with one detainees which is attributable to another and the fact that the HIV lengthy pre-trial detentions.13 Of prevalence in prisons is almost 5% equal concern was the finding that higher than within the general Ugandan prisons are operating at population yet HIV treatment is 312% of their capacity.14 Inevitably, either denied or provided on an the long periods on pre-trial inconsistent basis, leading to deaths detention in overcrowded cells, of prisoners due to AIDS.18 violate the accused’s right to liberty and also makes them vulnerable to In 2007, Freedom House found that other human rights violations such there were over 26,000 individuals as the right to freedom from torture behind bars in the country’s 224 and cruel, inhuman and degrading prisons, twice the official capacity of treatment or punishment, the right the prison system. The report to health and the right to an adequate highlighted that pretrial detainees standard of living. constituted more than half of the prison population and more than In 2011, Human Rights Watch 500 prisoners die annually as a result (HRW) found that there were serious of poor diet, sanitation, and medical shortcomings in Ugandan prisons in care.19

12 Foundation for Human Rights Initiative (FHRI) Justice delayed is justice denies; the plight of pre- trial detainees in Uganda (2017). 13 As above. 14 As above. 15 Human Rights Watch Even dead bodies must work: Health, hard labor and abuse in Ugandan prisons (2011) 14-21. 16 As above. 17 Above. 18 Above. 19 Freedom House Freedom in the World 2009 Uganda (16 July 2009).

Human rights abuses and violations against Lesbian, Gay, 8 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala In 2008, The Open Society Initiative highlighted by the foregoing studies exposed violations of human rights and reports which were undertaken attributable to one’s HIV/AIDS several years later, conditions remain status.20 LGBT persons were almost as they were in 2001, if not specifically identified as some of the worse. This state of affairs, especially most vulnerable due to a hostile the worsening human rights legal environment. Provision of legal conditions and violations during pre- aid was highlighted as one of the trial detention, has been attributed effective mechanisms for addressing by Roselyn Karugonjo Segawa to such violations.21 This study is weak implementation of the legal particularly significant for it and procedural safeguards against underscored the contribution of violations.23 She argues that Uganda’s laws and their implementation to legal regime is largely compliant with violation of human rights of the international human rights stigmatised communities such as standards, yet most pre-trail LGBT persons and sex workers. detainees are victims of arbitrary arrests and suffer human rights Findings of deteriorating detention violations such as torture and conditions and violations of human inhuman and degrading treatment, rights are consistent with the report unlawful detention, abuse of the of Dr. Vera Mlanguzwa Chirwa, the vulnerable such as children and Special Rapporteur on Prisons and women, lack of a fair trial, lack of Conditions of Detention in Africa, proper nutrition, water and sanitation who visited Ugandan prisons in among others. She also places blame March 2001. She reported on the on administrative and governance presence of torture and ill-treatment issues such as inadequate police in Ugandan prisons and noted that training, lack of capacity of criminal remand of accused persons and investigators, corruption, political overcrowding of prisons presented interference and poverty. considerable challenges.22 She recommended decriminalisation of Fewer studies have focused on petty offences, increased funding for conditions of LGBT persons in prisons, human rights trainings for detention or imprisoned. In 2014 prison staff, combating of corruption, HRAPF and the Civil Society among others. But as already Coalition on Human Rights and

20 S Mukasa & A Gathumbi “HIV/AIDS, Human Rights and Legal Services in Uganda, a country assessment” Open Society Initiative for East Africa (OSIEA) 2008. 21 As above. 22 African Commission on Human and Peoples Rights (ACHPR); Report of the Mission of the Special Rapporteur on Prisons and Conditions of Detentions in Africa to Uganda, (2002) available at http://www.achpr.org/files/sessions/33rd/mission-reports/uganda/achpr33_ misrep_specmec_priso_uganda_2001_eng.pdf, accessed on 21st July 2019. 23 R Karugonjo-Segawa, Pre-trial detention in Uganda, APCOF Policy Paper No. 4 of 2012, available at https://www.researchgate.net/publication/272171799_Pre-trial_Detention_in_ Uganda accessed on 15th November 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 9 imprisonment in Uganda: A case study of Kampala Constitutional Law (CSCHRCL) violations by private actors.25 undertook a documentation of Violations took the form of arbitrary human rights violations and abuses arrests, anal examinations, detention suffered by LGBT people in Uganda.24 beyond 48 hours and being denied A total of 153 reports of cases of access to counsel. Transgender human rights violations against the persons were detained in cells of LGBTI community in Uganda were persons of the opposite gender recorded of which 78 were verified. identity which led to abuse of their There were 26 LGBT people who dignity.26 The passing of the Anti- had suffered unlawful arrest and homosexuality Act 2014 (AHA) was illegal detention including detention found to have further fueled and without being produced in a court of directly contributed to violations and law beyond the constitutional 48 abuses of rights of LGBT persons hours, arbitrary arrest without due to the wide-sweeping provisions charge and being held that encouraged people and incommunicado in pre-trial authorities to abuse the rights of detention. LGBT persons.27 The report however, clarified that with or without the Similar violations reports, which AHA, violations based on gender were published annually following identity would still have occurred as the 2014 report, showed that the demonstrated by earlier reports. The trend had not changed. The 2015 reports released covering violations report covering the period in the committed against LGBT persons in year 2014 and relying on 89 2015, 2016, 2017 and 2018 time documented and verified cases of and again pointed to the Police as violations, implicated the Uganda the single greatest violator of human Police Force as not only active in rights.28 violation of human rights of LGBT people but also that it condoned

24 Human Rights and Constitutional Law (HRAPF), Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL), Sexual Minorities Uganda (SMUG), Rainbow Health Foundation (RHF) and Support Initiative for Persons with Congenital Disorders (SIPD); Uganda Report of Violations Based on Gender Determination, Gender Identity and Sexual Orientation, (2014). 25 The Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation, n 6 above. 26 Above. 27 Above. 28 The Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation Uganda report of violations based on sexual orientation and gender identity (2016) 9; The Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation Uganda Report of Violations Based on Gender Identity and Sexual Orientation (2017); Human Rights Awareness and Promotion Forum The Uganda Report on Human Rights Violations based on sexual orientation and gender identity, 2018: Increasing protections and reducing state violations (2018) 24; HRAPF The Uganda report of human rights violations based on sexual orientation and gender identity 2018* (2019) 26.

Human rights abuses and violations against Lesbian, Gay, 10 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala The violations reports above provide conduct on file in any magistrate’s a succinct account and of violations court in Kampala.33 Moreover, all suffered by LGBT people for the cases that were filed in court during stated periods. However, as stated, the period 2007-2011 in Kampala they cover the specific periods, that district ended in dismissal for want is 2013 – 2018. Significantly, the of prosecution.34 authors were not specifically focused on violations arising out of arrest As the existing literature shows and detention but rather sought to Uganda’s criminal justice system is provide a go-to record of all forms of characterised by human rights violations suffered by LGBTI persons. violations from arrest through detention, imprisonment and even Taking a different approach, HRAPF post-release. Whereas the violations and the CSCHRCL compiled a are suffered by the general critique of how the laws criminalising population, LGBT persons are at a same-sex conduct are enforced in higher risk of suffering violations due Uganda.29 The study focused on to their sexual orientation and sections of the Penal Code Act which gender identity. criminalise carnal knowledge against the order of nature and other Given the existing literature, the offences such as indecent practices, knowledge that is needed is a record rogue and vagabond and idle and of the nature and trends of human disorderly offences. The authors rights violations and abuses that are concluded that the Penal Code is suffered by LGBT persons who are used to persecute rather than detained and imprisoned within the prosecute people believed to be of criminal justice system in Uganda. LGBT orientation.30 This took the Also, the existing literature largely form of arrests without investigation, lacks information on how LGBT subjecting arrested people to public persons are treated while in prison. humiliation and detention without This research seeks to build on the charge.31 Most telling, was the current literature by placing finding that over the period 2007- concentrated focus on the human 2011 there was no concluded trial rights violations suffered by LGBT involving an offence under section persons in detention and in prisons 145 of the Penal Code.32 There was in Uganda. neither a single conviction nor an acquittal for consensual same-sex

29 CSCHRCL & HRAPF Protecting morals by dehumanising suspected LGBTI Persons, a critique of the enforcement of laws criminalising same sex conduct in Uganda 2013. 30 As above. 31 As above. 32 As above. 33 As above. 34 As above.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 11 imprisonment in Uganda: A case study of Kampala 1.9 Ethical Council for Science and Technology considerations (UNCST).

A high degree of ethical standards was maintained so as to protect the 1.10 Challenges dignity, privacy and integrity of all The study did not benefit from the research participants. In particular, views of individual prisons officers respondents were informed of the who could not comment on human following: rights issues. Similarly, most Police i) The aims, methods, anticipated officers were generally evasive in benefits and potential risks of their responses which deprived the the research; study of their detailed input. ii) Their right to abstain from participating in the research as well as their right to terminate participation at any point; iii) The confidentiality with which their responses were to be treated.

Prior to participation in the study, all participants were required to give their informed consent. Where participants were not fluent in English, they were interviewed in the language they were comfortable with, which was mainly Luganda. Informed consent was given verbally and recorded using audio recorders or in writing. Furthermore, the interviews and group discussions were held in private, convenient locations that were selected with the help of representatives of the concerned respondents and their organisations. Ethical approval for the study was obtained from The Aids Support Organisation (TASO)’s Research Ethics Committee as well as ethical clearance from the Uganda National

Human rights abuses and violations against Lesbian, Gay, 12 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala 2. LEGAL, POLICY AND INSTITUTIONAL SAFEGUARDS FOR LGBT PERSONS IN DETENTION AND IMPRISONMENT IN UGANDA

2.1 Introduction 2.2 Legal safeguards According to the United Nations under international Body of Principles for the Protection and regional of all Persons under any form of instruments Detention or Imprisonment, 1988 (Principles on Detention or Uganda is a state party to and has Imprisonment), ‘detained persons’ ratified all of the core international means any person deprived of human rights instruments including personal liberty except as a result of the Charter of the United Nations, conviction of a crime and ‘imprisoned the Universal Declaration on Human person’ means any person deprived Rights (UDHR), the International of personal liberty as a result of Covenant on Civil and Political Rights conviction of an offence. ‘Detention’ (ICCPR), the International Covenant and ‘imprisonment’ and ‘detainees’ on Economic, Social and Cultural and ‘prisoners’ have corresponding Rights (ICESCR), the United Nations meanings. People in detention and Convention Against Torture, and imprisonment in Uganda are entitled other forms of Cruel, Inhuman and to legal safeguards and protection of Degrading Treatment or Punishment their fundamental rights and (CAT), the United Nations freedoms in accordance with the Convention on the Rights of the Constitution, legislation and Child (CRC), the Convention on the guidelines in force. Uganda is also a Elimination of All Forms of state party to a host of international Discrimination Against Women and regional instruments which (CEDAW), among others. In addition, guarantee and protect the human in the area of detention and rights of detained and imprisoned imprisonment these instruments are people. This Chapter explores both supplemented by the UN Body of the domestic and international legal Principles on the Protection of All safeguards available to LGBT people Persons Under any Form of in detention and imprisonment in Detention or Imprisonment 1988; Uganda to set the tone for the the UN Standard Minimum Rules for assessment of the detention and the Treatment of Prisoners (SMR) imprisonment conditions in the next also known as the Mandela Rules chapters. and the UN Basic Principles for the Treatment of Prisoners 1990 (BPTP).

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 13 imprisonment in Uganda: A case study of Kampala At the African regional level, Uganda described detainees and prisoners subscribes and is subject to the as ‘people whose cries for help in African Charter on Human and moments of pain can be heard by Peoples’ Rights (ACHPRs), the nobody except fellow inmates’.36 Protocol to the African Charter on Almost all of the listed human rights the Rights of Women in Africa, the instruments share this concern. Protocol to the African Charter establishing the African Court on The instruments underline the Human and Peoples’ Rights, the significance of the freedom from African Charter on the Rights and torture and other cruel, inhuman and Welfare of the Child (ACRWC), the degrading treatment or punishment Kampala Declaration on Prison and emphasise the fact that it is non- Conditions in Africa 1996, which derogable, that is, there are no was adopted by Prison heads from exceptional circumstances under 37 47 African Countries. which torture may be justified. This declaration in the CAT is framed as These instruments inform and direct follows: the interpretation and application of human rights standards and No exceptional circumstances safeguards in Uganda. whatsoever, whether a state of war or a threat of war, internal The key principles in these political instability or any other instruments are replicated in the public emergency, may be national system. invoked as a justification of torture. Protection of the dignity and fundamental rights of all persons, Thus, under international law, torture including detainees and prisoners, is is outlawed in all circumstances the primary concern of international without any exceptions. and regional human rights instruments. Because prisoners and The guarantee of the right to liberty detainees are placed in a weaker and and personal security is another inferior position, left to the mercy of keystone of the major international 38 the police and prison officials, their instruments. The ICCPR and the treatment remains a major challenge ACHPR aptly put it that no-one may in the quest for the respect of the be deprived of his freedom except human person.35 The Office of the for reasons and conditions previously United Nations High Commissioner laid down by law but also go on to for Human Rights (OHCHR) has specifically declare that no-one may

35 OHCHR: International Legal Standards for the Protection of Persons Deprived of their Liberty, available at https://www.ohchr.org/Documents/Publications/training9chapter8en.pdf accessed on 15th November 2019. 36 As above. 37 ICCPR, articles 4(2) and 7, CAT, article 2(2), UDHR article 5 and ACHPR, article 5. 38 UDHR, article, ICCPR, articles 9 and 10 and ACHPRs, article 6.

Human rights abuses and violations against Lesbian, Gay, 14 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala be arbitrarily arrested or detained.39 Conditions of detention and Even where one’s liberty is denied in imprisonment are fully elaborated in accordance with the law, conditions the Principles on Detention or of detention or imprisonment are Imprisonment, the Mandela Rules stipulated under international human (SMR) and the BPTP. Key among rights law. The ICCPR requires them are the requirements to afford among others that the detained prisoners and detainees an adequate person must be informed of the standard of living with healthy food charges; promptly presented before and safe drinking water; proper a judicial officer for trial; is entitled to accommodation and bedding; an be released pending trial subject to attainable standard of physical and guarantees enabling him or her to mental health; safe prison conditions attend trial, and be entitled to seek with limited use of fire arms, chains compensation in the event of and irons; the right to communicate wrongful detention.40 Expounding with the outside world especially on article 7 of the ICCPR, the Human family and friends without Rights Committee has in its General interference with the privacy of the Comment No. 20 explained: communications,42 equal treatment of all prisoners and detainees To guarantee the effective without discrimination, separation of protection of detained persons, women from men and care for provisions should be made for pregnant female prisoners and detainees to be held in places detainees.43 officially recognized as places of detention and for their names The right to liberty is part of a bundle and places of detention, as well of rights which cannot be separated as for the names of persons from one another such as the right responsible for their detention, to a fair trial, the right to property, to be kept in registers readily freedom from discrimination, the available and accessible to those right to privacy and the right to food concerned, including relatives and a healthy standard of living. and friends.41 These rights are well established in the international instruments.

39 As above. 40 ICCPR, Article 9. 41 OHCHR: International Legal Standards for the Protection of Persons Deprived of their Liberty, available at https://www.ohchr.org/Documents/Publications/training9chapter8en.pdf accessed on 15th November 2019. 42 UDHR, article 12; ICCPR, article 17; Principles on Detention or Imprisonment, principle 19; SMR, rules 37 and 79. SMR, rule 38. Principles on Detention or Imprisonment, principle 20. 43 UDHR, article 2; ICCPR, article 3; CEDAW, articles 1, 2 and 3; Declaration on the Elimination of Violence against Women [hereinafter “Declaration on Violence against Women”], article 3; CEDAW, articles 1, 6 and 7; Declaration on Violence against Women, articles 2; Principles on Detention or Imprisonment, principle 5; SMR, rule 8 (a); SMR, rule 53; SMR, rule 23 (1); SMR, rule 23 (1); UDHR, article 1.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 15 imprisonment in Uganda: A case study of Kampala No international instrument are entitled, on the basis of specifically provides for LGBT equality, to be informed of the persons in detention. However, the reasons for arrest and the nature Yogyakarta Principles on the of any charges against them, to application of international human be brought promptly before a rights law in relation to sexual judicial officer and to bring court orientation and gender identity, proceedings to determine the codify international law principles lawfulness of detention, whether applicable to sexual orientation and or not charged with any offence. gender identity.44 The Yogyakarta Principles were adopted by a group States shall: of human rights experts in 2006 as an authoritative statement on the application and interpretation of A. Take all necessary legislative, human rights law to LGBT people. In administrative and other 2017 they were supplemented by measures to ensure that sexual what is known as the Yogyakarta orientation or gender identity Principles Plus 10. may under no circumstances be the basis for arrest or detention, Principles 7 and 9 are of profound including the elimination of significance to the interpretation of vaguely worded criminal law human rights standards in relation provisions that invite to LGBT people in detention and discriminatory application or imprisonment and are reproduced otherwise provide scope for below in detail: arrests based on prejudice;

Principle 7: The right to freedom from B Take all necessary legislative, arbitrary deprivation of liberty administrative and other measures to ensure that all persons under arrest, regardless No one shall be subjected to of their sexual orientation or arbitrary arrest or detention. gender identity, are entitled, on Arrest or detention on the basis the basis of equality, to be of sexual orientation or gender informed of the reasons for identity, whether pursuant to a arrest and the nature of any court order or otherwise, is charges against them, and arbitrary. All persons under whether charged or not, to be arrest, regardless of their sexual brought promptly before a orientation or gender identity, judicial officer and to bring court

44 Yogyakarta Principles: http://www.yogyakartaprinciples.org/ (accessed 2 December 2019), together with Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles, adopted 10 November, 2017 (The Yogyakarta Principles plus 10 (YP+10)) http://yogyakartaprinciples.org/principles-en/ yp10/ (accessed 2 December 2019).

Human rights abuses and violations against Lesbian, Gay, 16 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala proceedings to determine the them to risk of violence, ill lawfulness of detention; treatment or physical, mental or sexual abuse; C. Undertake programmes of training and awareness-raising B. Provide adequate access to to educate police and other law medical care and counselling enforcement personnel regarding appropriate to the needs of the arbitrariness of arrest and those in custody, recognising any detention based on a person’s particular needs of persons on sexual orientation or gender the basis of their sexual identity; orientation or gender identity, including with regard to D. Maintain accurate and up to reproductive health, access to date records of all arrests and HIV/AIDS information and detentions, indicating the date, therapy and access to hormonal location and reason for or other therapy as well as to detention, and ensure gender-reassignment treatments independent oversight of all where desired; places of detention by bodies that are adequately mandated C. Ensure, to the extent possible, and equipped to identify arrests that all prisoners participate in and detentions that may be decisions regarding the place of motivated by the sexual detention appropriate to their orientation or gender identity of sexual orientation and gender a person. identity;

Principle 9: The right to treatment D. Put protective measures in with humanity while in detention place for all prisoners vulnerable to violence or abuse on the basis Everyone deprived of liberty shall of their sexual orientation, be treated with humanity and gender identity or gender with respect for the inherent expression and ensure, so far as dignity of the human person. is reasonably practicable, that Sexual orientation and gender such protective measures involve identity are integral to each no greater restriction of their person’s dignity. rights than is experienced by the general prison population; States shall: E. Ensure that conjugal visits, where permitted, are granted on A. Ensure that placement in an equal basis to all prisoners; detention avoids further and detainees, regardless of the marginalising persons on the gender of their partner; basis of sexual orientation or gender identity or subjecting

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 17 imprisonment in Uganda: A case study of Kampala F. Provide for the independent participate in decisions regarding monitoring of detention facilities the facilities in which they are by the State as well as by non- placed; governmental organisations including organisations working J. Provide for effective oversight in the spheres of sexual of detention facilities, both with orientation and gender identity; regard to public and private custodial care, with a view to G. Undertake programmes of ensuring the safety and security training and awareness-raising of all persons, and addressing for prison personnel and all other the specific vulnerabilities officials in the public and private associated with sexual sector who are engaged in orientation, gender identity, detention facilities, regarding gender expression and sex international human rights characteristics. standards and principles of equality and nondiscrimination, The additional safeguards in the including in relation to sexual 2017 Yogyakarta Principles Plus 10 orientation and gender identity. include, among others; the right to state protection, the right to legal H. Adopt and implement policies recognition, the right to bodily and to combat violence, mental integrity and the right to discrimination and other harm freedom from criminalisation and on grounds of sexual orientation, sanction, under Principles 30, 31, 32 gender identity, gender and 33 respectively. expression or sex characteristics faced by persons who are The right to state protection under deprived of their liberty, including Principle 30 mandates states to with respect to such issues as protect LGBT people from violence, placement, body or other discrimination and harm, including searches, items to express the exercise of due diligence in gender, access to and prevention, investigation, continuation of gender affirming prosecution and remedies. Principle treatment and medical care, and 31 calls for the legal recognition and “protective” solitary confinement; issue of state documents such as national IDs, passports and birth certificates, without reference to, I. Adopt and implement policies inquiring into or seeking disclosure on placement and treatment of of one’s sex, gender, sexual persons who are deprived of orientation, gender identity and their liberty that reflect the sexual characteristics. Principle 32 needs and rights of persons of all seeks to guarantee the right to bodily sexual orientations, gender and mental autonomy and integrity identities, gender expressions, without irrespective of sexual and sex characteristics and orientation, gender identity and ensure that persons are able to

Human rights abuses and violations against Lesbian, Gay, 18 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala sexual expression. Lastly, but not declares that fundamental human least, Principle 33, declares the right rights and freedoms are inherent to be free from direct or indirect and not granted by the state and criminalisation and sanctions enjoins all state organs and agencies including those based on religious, to respect, uphold and promote the vagrancy, public decency and rights of the individual and groups.46 sodomy laws. As such the Justice, Law and Order Sector (JLOS) institutions including The Yogyakarta Principles do not the Uganda Police Force and the create any new norms, but rather Uganda Prisons Service are bound rely on existing norms, and this by the Constitution. Article 21 implies that under international law, guarantees equality of all persons states are bound to protect persons before and under the law and in detention or in prison from prohibits discrimination on the basis violence or discrimination based on of one’s sex, race, colour, tribe, birth, their sexual orientation of gender religion, social or economic standing, identity. Not only that, states are political opinion or disability of any also under obligation to decriminalise kind. However, this provision is sexual orientation and gender closed ended and does not include identity and recognise LGBT people sexual orientation and gender as enunciated in the Yogyakarta identity as grounds for discrimination. Principles Plus 10. This omission is not accidental as it is reinforced by a 2005 constitutional amendment which introduced article 2.3 Domestic laws 31(2a) prohibiting same-sex protection of LGBT marriages. Thus, the right to equality and non-discrimination guaranteed persons in under the Ugandan Constitution is detention or prison currently restricted in its application A number of laws are relevant to the and interpretation in relation to protection of LGBT persons in LGBT people, and this has laid the detention and in prison in Uganda. foundation for human rights These are: violations and abuses suffered by LGBT people.

2.3.1 Constitutional Protections The right to personal liberty is embedded in article 23 which The Constitution of Uganda protects prescribes the conditions for arrest, human rights for all persons, detention and imprisonment. It including LGBT persons.45 Article 20

45 See decision of the High Court in Kasha Jacqueline Nabagesera, David Kato Kisuule & Pepe Julian Onziema v The Rollingstone Newspaper & Giles Muhame (Rolling Stone case), Miscellaneous Cause No. 163 of 2010 (High Court of Uganda) 30 December 2010. For a detailed discussion on this see Human Rights Awareness and Promotion Forum ‘A guide to the normative legal framework on the human rights of LGBTI persons in Uganda’ Second Edition, February 2019, 6. 46 Article 20 of the Uganda Constitution.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 19 imprisonment in Uganda: A case study of Kampala prohibits arrest of any person except The right to a lawyer of his/her for lawful reasons defined in the choice must also be explained to an Constitution. These include: arrested or detained person.51 execution of a sentence or order of a court of law or tribunal passed upon Under article 23(4), a suspect must conviction in criminal proceedings, be produced before a court of law punishment for contempt of court, within 48 hours from the time of an order made by a court to secure arrest. fulfillment of any obligation, for Further, an arrested person is purposes of presenting a person to a entitled to have their next-of-kin court of law to answer to a criminal informed about the arrest as soon as charge, to prevent spread of an possible, and to have access to a infectious or contagious disease, for lawyer of their choice and medical the education or welfare of a minor, doctor.52 Medical treatment must be and to protect the community from availed by the state except where and for the treatment and care of the person desires private medical persons of unsound mind and drug treatment which they are entitled to 47 and alcohol addicts. Others are: to access at their own cost.53 enforce immigration laws on entry into and exit from Uganda, to enforce Clause 6 preserves an arrested extradition of criminals and as person’s right to apply to court to be authorised by any law.48 released on bail on conditions which may be prescribed by court.54 The Any person arrested or detained Constitutional Court has clarified must be kept in a detention facility that grant of bail is not automatic 49 authorised by law and must be but rather that the accused has the informed in a language they right to apply to court to be released understand of the reasons for the on bail and the court has the 50 arrest or detention. Detention discretion whether or not to grant places which are authorised by law bail.55 However, the Constitution are: police stations and lock ups and also provides for instances of army barracks only for persons mandatory release on bail where: a arrested under the Uganda Peoples’ person is held on remand for sixty Defence Forces (UPDF) Act. In days before trial in respect of an both instances, the detained person offence triable by a magistrates must be released or produced in court w ithin 48 hours. The other authorised detention facilities are prisons run by the Uganda Prisons Services for people on remand 51 As above. pending trial and convicts. 52 Article 23(5). 53 47 As above. Article 23(1). 54 48 Article 23(6)(a). As above. 55 49 See Uganda (DPP) vs. Col (RTD) Dr. Kizza Article 23(2). Besigye, Constitution Reference No. 20 50 Article 23(3). of 2005.

Human rights abuses and violations against Lesbian, Gay, 20 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala court56 and, a person has been on limitations could be justified under remand for 180 days before he/she article 43(1) of the Constitution. is committed to the High Court for However, he added, that personal trial.57 In such cases, the court’s liberty is crucial in the Constitution discretion is limited to determining and that any derogation from it has conditions of release on bail. to be done as a matter of unavoidable necessity, while the Constitution Clause 7 provides for payment of ensures that such derogation is just compensation to any person who is temporary and not indefinite.62 He unlawfully arrested or detained went on to declare unconstitutional whether by state or non-state actors. the conduct of the UPDF of among Any period spent in lawful custody others: holding the plaintiff in military by any person arrested in respect of safe houses which were not lawful a criminal offence before completion places of detention, failure to inform of their trial must be taken into his next of kin of the detention, account when determining the detaining him for 9 months without 58 sentence to be imposed. Lastly, the bringing him before a court of law, Constitution preserves the right to failure to inform him of the reasons 59 an order of habeas corpus as why he was arrested and detained. inviolable and non-derogable.60 The right to freedom from torture, Almost the entire breadth of the cruel, inhuman and degrading rights and conditions set out in treatment and punishment is article 23 was considered and guaranteed under article 24 and sufficiently elucidated by Justice entrenched as a non-derogable right Musa Ssekaana in Issa Wazembe v by article 44(a). Mistreatment upon 61 Attorney General. The learned arrest and in detention and Judge of the High Court observed imprisonment constitutes one of the that the right to personal liberty is most common violations of this not absolute and could be restricted provision. Issa Wazembe v Attorney in accordance with article 23. The General63 provides an erudite right could further be limited if such commentary of the phenomenon of

56 Article 23(6)(b). 57 Article 23(6)(c). 58 Article 23(8). 59 Habeas Corpus is a writ requiring a person under arrest to be brought before a judge or court, especially to secure the person’s release unless lawful grounds are shown for their detention. It is an order used to obtain release of people who are detained unlawfully. See the Black Law Dictionary at https://thelawdictionary.org/habeas-corpus/ 60 Article 23(9) and Article 44(d). 61 HCCS No. 154 of 2016 (High Court Civil Division) (unreported) available at https://ulii.org/ system/files/judgment/hc-civil-division-uganda/2019/181/hc-civil-division-uganda-2019- 181.pdf. 62 As above. 63 Wazembe case (n 61 above).

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 21 imprisonment in Uganda: A case study of Kampala torture, cruel, inhuman and humiliation, unlawful search, degrading treatment and punishment confiscation of documents and in detention conditions, in which the correspondence, undressing and learned Judge opined that freedom unlawful arrest of an LGBT activist from torture is absolutely guaranteed by members of the Uganda Police and cannot be justified under and the Local Council leadership of whatever circumstance: 64 the area. Lady Justice Stella Amoko Arach concluded that such actions Freedom from torture is one of violated her fundamental human the most universally recognized rights to equal treatment, privacy, human rights. Torture is personal property and freedom from considered so barbaric and torture, cruel, inhuman and incompatible with civilized degrading treatment and society that it cannot be punishment. tolerated. Torturers are seen as the ‘enemy of mankind.’ The right to a fair hearing is enshrined in article 28 and its key tenets are Article 26 provides for the right to elaborately set out. It entails a fair, own property either individually or speedy and public hearing before an jointly with others and such a independent and impartial court of property cannot be taken away by law or tribunal.66 One of its pillars is the state except for lawful reasons the presumption of innocence for defined in the Constitution and any person charged with a criminal others and subject to payment of offence.67 Other components of the fair, adequate and prompt right to a fair hearing include the compensation prior to take over. prohibition of charging with a This right extends to one’s criminal offence which did not exist possessions upon arrest and in law at the time of the impugned detention. Similarly, the right to conduct,68 double jeopardy (the privacy provided for in article 27 prohibition on being tried more than must be observed and respected once for the same offence),69 charges during arrest and detention. The of criminal offences which are not High Court in the case of Victor defined in law and punishment Mukasa and Another v Attorney prescribed.70 An accused person is 65 General examined the foregoing also entitled to access to a lawyer constitutional provisions relating to

64 Wazembe case (n 61 above). 65 High Court Miscellaneous Cause Np. 247 of 2006 (Civil Division) (unreported) available at https://www.icj.org/wp-content/uploads/2012/07/Mukasa-and-Oyo-v.-Attorney-General- High-Court-of-Uganda-at-Kampala.pdf. 66 Article 28(1). 67 Article 28(3)(a). 68 Article 28(7). 69 Article 28(9) and (10). 70 Article 28(12).

Human rights abuses and violations against Lesbian, Gay, 22 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala and to necessary assistance such as Suffice to state that no state of interpreters.71 Except for persons emergency has been declared in facing trial for capital offences and Kampala in the last ten years (2009 offences carrying a maximum of life – 2019), the study period.76 imprisonment, the person facing trial is also liable for their own legal Whereas all the constitutional costs.72 guarantees and protections enumerated in this section should With the exception of the non- be available to LGBT persons just derogable rights prescribed in article like any other person in Uganda, this 44, the Constitution provides for a position has been plunged into general limitation on the enjoyment doubt by the High Court. Relying on of the guaranteed rights and among others article 43 which freedoms.73 One of the grounds for creates a general limitation on the the limitation is public interest but enjoyment of the constitutional detention without trial is expressly rights and freedoms and section 145 excluded from the purview of public of the PCA, the High Court has interest under the limitation.74 Thus, upheld as justified a stopping of an under no circumstances is unlawful LGBT skills workshop by the Minister detention permitted under the of Ethics and Integrity77 and refusal Ugandan Constitution. by the Uganda Registration Services Bureau to reserve the name Sexual Article 47 provides for conditions of Minorities Uganda (SMUG) for detention under a state of registration as a company limited by emergency. Under the provision, a guarantee.78 Those two decisions person detained in a state of reversed earlier progressive emergency must be informed of the judgments in Victor Mukasa and reasons for the detention within 24 Another vs. Attorney General79 in hours, their spouse must be notified which the High Court held that an within 72 hours and a notice of unauthorised search, humiliation detention stating the grounds of the and arrest of an LGBTI person detention must be published in the amounted to violation of the 75 Uganda Gazette within 30 days. constitutionally guaranteed rights to

71 Article 23(3). 72 Article 28(3)(e). 73 Article 43. 74 Article 43(2)(b). 75 Article 47(a)(b) and (c). 76 The last state of emergency in Uganda was declared in flood-hit Northern Uganda pursued to the Constitution (Declaration of State of Emergency) Proclamation, 2007. 77 High Court Civil Division Miscellaneous Cause No. 33 of 2012 accessed at https://ulii.org/ug/ judgment/high-court-civil-division/2014/85 on 10th December 2019. 78 High Court Miscellaneous Cause No. 96 of 2016. 79 High Court Miscellaneous Cause No. 247 of 2006.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 23 imprisonment in Uganda: A case study of Kampala privacy, dignity and personal liberty a permanent place of abode, and Jacqueline Kasha and Others vs. substantial sureties and payment of Rollingstone and Another80 where a bail bond.81 Both Acts also provide court held that publication of for issue and execution of pictures and names of LGBTI persons summonses, search warrants and violated their right to dignity, right to arrest warrants for purposes of privacy and freedom from enabling an accused person to be discrimination. produced before court for trial.82 The Criminal Procedure Code Act 2.3.2 Legislative safeguards which regulates administration Acts of Parliament provide further of substantive criminal justice safeguards in the protection of the confers powers of arrest on police rights and freedoms of people facing officers, judicial officers and private arrest, detention and imprisonment persons but requires a private and prescribe rules for treatment of person who e xercises powers of detainees and imprisoned people. arrest to deliver the arrested These include the Magistrates person to a police officer or the Courts Act cap 16 (MCA), the Trial nearest police station without on Indictments Act cap 16 (TIA), the delay.83 Although use of force Human Rights (Enforcement) Act to apprehend a person is 2019, the Penal Code Act cap 120 permitted, the Act prohibits use of (PCA), the Criminal Procedure Code unnecessary restraint.84 Section 17 Act cap 116 (CPCA), the Police Act provides for release on police bond Cap 303, the Prisons Act 2006 and of a person arrested and detained if the Uganda People’s Defence Forces the arrest is not in respect of murder, Act 2006 (UPDF Act), among others. treason or rape. The grant of police bond to people in police detention is The Magistrates Courts Act cap 16 further amplified in sections 24 and and the Trial on Indictments Act cap 25 of the Police Act Cap 303. 23 guide the trial processes, According to these provisions where including criminal trials, before an arrested person is not produced magistrates courts and the High in a magistrates court within 48 Court respectively. Both Acts hours, they are entitled to be provide for conditions of bail in released on police bond. accordance with the right to personal liberty in article 23 of the Constitution Section 38 of the Police Act declares which include among others, having that Police bond is free and no fee is payable to obtain release. Where an

80 High Court Miscellaneous Cause No. 163 of 2010 available at http://www.iglhrc.org/sites/ default/files/2010%20Kasha%20Jacqueline%20v%20Rolling%20Stone.pdf accessed on 10th December 2019. 81 Sections 75, 76 and 77 of the MCA and Sections 14, 15 and 16 of the TIA. 82 Sections 5 – 12 of the TIA and sections 69 to 74 of the MCA. 83 Section 16 of the CPCA. 84 Section 5 of the CPCA.

Human rights abuses and violations against Lesbian, Gay, 24 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala arrested person is being held in and 44(a) of the Constitution is laid violation of sections 24 or 25 of the down in the Prevention and Police Act, an application may be Prohibition of Torture Act 2012. The made to a magistrate court for an Act provides further safeguards order of release.85 On the weight of especially for persons under arrest these provisions in the CPCA and or in detention. It prohibits and the Police Act, persons arrested for criminalises torture and slaps a ‘carnal knowledge against the order maximum sentence of 15 years upon of nature, or such similar offences conviction for torture and life are entitled to be released on police imprisonment in instances of bond, if not produced in court within aggravated torture.88 Specifically, on 48 hours. detention, the Act prohibits transfer or release of detainees and prisoners However, section 11 of the CPCA if there is a likelihood that they will permits the arrest of vagabonds, be subjected to torture. described in the section as people with no ostensible means of Also, section 25(4) of the Police Act, subsistence or who cannot give a empowers a magistrate to investigate satisfactory account of themselves. a complaint of torture of a person in This provision, along with the police custody and order treatment foundational provisions of section of such a person while the 167 and 168 of the PCA, have responsible police officer may be regularly been used to arrest and charged. unlawfully detain LGBT people and other minorities in violations of their Detention and imprisonment of human rights and freedoms.86 This people in prisons is under the ambit may have constitutional implications of the Prisons Act 2006. The Prisons and section 168(1)(c) and (d) of the Act provides for the general PCA are subject of a constitutional administration of prisons and challenge in the petition of Francis handling of prisoners in line with Tumwesige Ateenyi v Attorney General87 effective and humane modern penal which is pending in the Constitutional policy and universally accepted 89 Court. international standards. The Act incorporates elaborate safeguards The framework for the for prisoners’ and detainees’ human implementation of the prohibition rights and welfare. Separation of against torture and inhuman and male and female prisoners is degrading treatment in articles 24 mandatory and female prisoners

85 Sections 24(4) and 25(3) of the Police Act. 86 See HRAPF The Enforcement of Idle and Disorderly Laws on the Human Rights of Marginalized Groups in Uganda 2016, available at https://hrapf.org/index.php/resources/research- reports/32-160929idleanddisorderlyresearchfinalreport/file. 87 Constitutional Petition no. 36 of 2018. 88 Sections 3, 4 and 5 of the Prevention and Prohibition of Torture Act 2012. 89 See long title to the Prisons Act 2006. Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 25 imprisonment in Uganda: A case study of Kampala should be guarded by female prison to prisoners food of adequate officers.90 There is however no such nutritional value and safe drinking provision for transgender persons. water and to allow a prisoner who is not employed on outdoor work at Section 57 lists the rights of prisoners least one hour per day of suitable in custody of the Uganda Prisons exercise in open air.92 A prisoner or Service including being treated with detainee is also entitled to regulated the respect due to one’s inherent access to the outside world especially dignity and value as a human being; to their lawyer, relatives and not to be discriminated against on friends.93 the basis of race, sex, language, colour, religion, political or other Part Seven of the UPDF Act opinion, national or social origin, prescribes conditions and standards property, birth or other status. for arrests, searches and handling of Reference to other status here is detained members of the UPDF and significant as the Prisons Act departs civilians who are subject to military from the closed definition of the law such as those charged with grounds for discrimination in the possession of fire arms and other Constitution and leaves the door military offences. These conditions open for inclusion of sexual are generally in conformity with what orientation and gender identity as has already been described in this analogous grounds. section. In addition, there is requirement that a person arrested Other listed rights in section 57 must be committed to civil prison or include the right to worship and take service custody within 24 hours.94 part in cultural and educational activities; access to health services; The Human Rights (Enforcement) and the right to take up meaningful Act 2019 was enacted by the remunerated employment. All these Parliament at the beginning of 2019. rights are subject to the Constitution The Act, which provides a legal implying that all Constitutional rights framework for the enforcement of apply to the extent possible. the rights and freedoms in Chapter Four of the Constitution, received Unconvicted prisoners must be Presidential assent on 31st March presumed innocent and treated as 2019. The Act provides for such and must be held in separate enforcement of human rights by the 91 custody from convicts. Section 66 High Court and Magistrates Courts re-iterates the prisoner’s right to and generally regulates the filing and apply to be released on bail by a conduct of human rights suits. It also Magistrates court or the High Court. prescribes personal liability for Other important welfare provisions human rights violations by public include: the requirement to provide

92 90 Sections 29, 59 and 60 of the Prisons Sections 69 and 70 of the Prisons Act. Act. 93 Section 78 of the Prisons Act. 91 Section 64. 94 Section 188 of the UPDF Act.

Human rights abuses and violations against Lesbian, Gay, 26 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala officers,95 loss of immunity from the Human Rights (Enforcement) Act prosecution by persons who enjoy 2019.100 The IGP also publicly legal immunity if they participate in warned members of UPF ‘to ensure human rights violations,96 and that the observation of human rights unconditional release of persons is adhered to without fail’.101 who are unreasonably detained.97 For the first time in Ugandan history, Given how elaborate the failure by any person to obey an Constitution and the enabling order for unconditional release is a legislation are, it is not surprising criminal offence which attracts that it has been stated that on the imprisonment of up to 10 years. whole Uganda’s legal framework, Among other measures, the Act especially the Constitution, complies makes provision for a third party to with international human rights seek redress on behalf of another standards relating to arrest and 102 person whose human rights have detention. What has been a matter been violated98 and also nullifies of great concern however are criminal proceedings in which the challenges encountered in the court finds that non-derogable rights implementation of the law and of an accused person have been procedural safeguards, which have violated.99 led to abuse of guaranteed and protected rights of prisoners and There is no doubt that this is detainees.103 However, with respect groundbreaking legislation. At the to LGBT persons, the main challenge commencement of the Act, the is that there are no specific Inspector General of Police Martins protections against discrimination Okoth-Ochola issued a circular dated on the basis of sexual orientation 3rd July 2019 to all police officers and/or gender identity. For a warning them that any form of marginalised community, fighting human rights violations including against stigma and discrimination torture and detention beyond 48 would require specific protections of hours attracts personal liability under marginalised groups and there ought

95 Section 10. 96 Section 14. 97 Section 15. 98 Section 3(2). 99 Section 11. 100 Interview with Police Officer, Kampala, 3rd December 2019. 101 ‘IGP to cops: You will pay for errant actions’ by Samuel Muhindo, The Observer, 10 July 2019, available online at https://observer.ug/news/headlines/61306-igp-to-cops-you-will-pay-for- errant-actions (accessed 2 December 2019). 102 A Adula. Undated. A History of the Violation of the Right to Personal Liberty in Uganda: Are there any improvements? http://ebookbrowse.com/a-history-of-theviolation-of-the-right- to-personal-liberty-in-uganda-doc-d107679647, accessed 30 October 2012. 103 Karugonjo, Above no. 24.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 27 imprisonment in Uganda: A case study of Kampala to be laws or guidelines prescribing of law and observance of human the treatment of such groups. rights in the UPF and the community, liaising with the Legal Department on disciplinary matters and legal complaints pertaining to human 2.4 Institutional and rights issues, promoting collaboration policy initiatives linkages with national and aimed at improving international institutions for human rights in purposes of enhancing human rights and ethics in the UPF and promoting detention and human rights education within the prison facilities in UPF.106 The Department is currently Uganda headed by Assistant Commissioner Besides the law, over the last ten of Police (ACP) Kusemererwa James years, both the Uganda Police Force who is assisted by seven other 107 and the Uganda Prisons Service have officers. The Department receives undertaken several initiatives aimed complaints of human rights abuses at improving human rights against police officers and forwards observance in detention cells and them to the Police Professional prisons. Standards Unit (PSU) for investigation.108

2.4.1 Human rights initiatives by Attempts have also been made to the Uganda Police Force decentralise the Human Rights The Uganda Police established a Department and 26 regional desks Human Rights and Complaints Desk have been created managed by Legal which was subsequently elevated to Officers in all the 26 regions of 109 a fully-fledged Directorate of Human UPF. Rights and Legal Services.104 Under the Directorate, there are three departments including the Human Rights Department which was created in 2013.105 The functions of the Human Rights Department include: carrying out awareness programmes on human rights instruments and laws for the staff in UPF, promoting respect for the rule

104 https://www.upf.go.ug/directorate/ 105 Interview with Police Officer, Kampala on 3rd December 2019. 106 As above. 107 As above. 108 As above. 109 As above.

Human rights abuses and violations against Lesbian, Gay, 28 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala The PSU was created in 2007 to warned against arresting LGBT receive and handle public complaints persons except upon commission of of misconduct against police officers. a verifiable offence.115 The UPF The PSU has powers to hear Human Rights Policy, however, complaints and where a police officer makes the following declaration is found guilty to impose sanctions regarding non-discrimination: ranging from half-pay, demotion in rank to dismissal from the Force.110 The UPF will provide police Although it hit the ground running, service to all persons without reportedly recording over 900 any bias or prejudice. The complaints and hearing half of them UPF must serve all persons in the first ten months of its with utmost professionalism, existence, the PSU is lately lethargic competence, courtesy, and and ineffective.111 respect regardless of age, sex, race or ethnic origin, language, The Police have also launched the religion, political or other Human Rights Policy 2019.112 The opinion, national or social origin, Policy acknowledges several disability, property, birth, gender, complaints of human rights violations social and economic status, or levied against the UPF by UHRC and any other status.116 other national and international human rights bodies and is designed This Policy follows the path of the to provide guidance to police officers Prisons Act to recognise, in the on how to enhance human rights definition of non-discrimination, the observance in their operations.113 It existence of “any other status” which also underlines the UPF’s leaves open the possibility for commitment to the promotion and inclusion of sexual orientation as a protection of human rights.114 The ground for non-discrimination. Policy makes no reference to LGBT According to the police officer who people or sexual orientation, was interviewed efforts are and a police officer interviewed underway to disseminate the Policy acknowledged that the Police does to all levels of the Police. Internal not give special attention to LGBT measures are further supplemented persons because of the social, by publications and partnerships political and logistical implications with UHRC and from civil society. involved but police officers are Indeed paragraph 2.1 of the Policy

110 https://ugfacts.net/uganda-police-professional-standards-unit/ 111 Interview with Legal Officer, Access to Justice, HRAPF during an interview held in Kampala on 20th November 2019. 112 Interview with police officer in Kampala on 3rd December 2019. 113 Chapter One, UPF Human Rights Policy 2019. 114 Chapter Two, UPF Human Rights Policy 2019. 115 Chapter Three, UPF Human Rights Policy 2019. 116 Paragraph 2.3 of the UPF Human Rights Policy 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 29 imprisonment in Uganda: A case study of Kampala encourages police collaboration explained that there are two human with, among others, civil society and rights committees at every prison in Non-Governmental Organisations. the country: one comprised of and responsible for human rights issues among the Police staff and, the 2.4.2 Human Rights initiatives by second comprised of prisoners and Uganda Prisons detainees. The two committees The Uganda Prisons Services has compile and send to the taken similar steps to adopt measures Commissioner General quarterly to promote human rights in prisons. reports highlighting human rights Not only has it established a human issues in their prisons.119 Existence rights unit, UPS adopted a vision of such a committee at Luzira statement which demonstrates their women’s prisons was confirmed by commitment to human rights. It R20 and R21, lesbian women, as one states ‘To be a centre of excellence in of the reasons violence against providing human rights based 120 117 inmates had reduced. correctional service in Africa’. Even their mission statement speaks the UPS has been at the forefront of same language emphasising human improving prison conditions in Africa rights; ‘To provide safe, secure, and and spearheaded the Kampala humane custody of offenders while Declaration on Prison Conditions in placing human rights at the centre of Africa to improve prison conditions their correctional programmes’. and address issues of remand prisoners, prison staff and alternative In 2009 UPS established the Human sentencing.121 They have also Rights Division headed by Assistant emphasised and invested in human Commissioner of Prisons (ACP) 118 rights trainings for prison staff. Victor Aioka. The Division receives Between 2008 and 2014, UPS human rights reports and complaints trained 1,118 prison staff in human which are forwarded to the rights with the trained staff expected Commissioner General of Prisons for to be ambassadors to champion the action. The Division has ensured observance of human rights in that there are Human Rights Desks prisons.122 at all levels of the Prisons Service. The most significant of such desks Human rights trainings for UPF and are the Human Rights Committees. UPS staff have also been undertaken A prisons official interviewed

117 See https://www.prisons.go.ug/aboutups/vision-and-mission. 118 Interview with prisons official in Kampala on 29th November 2019. 119 As above. 120 As above. 121 The Kampala Declaration was adopted on 21st September 1996 by 33 delegates from 47 countries. 122 https://humanrightsinitiative.org/publications/police/A_FORCE_FOR_GOOD_Improving_ the_Police_in_Kenya_Tanzania_and_Uganda.pdf.

Human rights abuses and violations against Lesbian, Gay, 30 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala under the JLOS umbrella. According persons. Indeed even recognition of to the JLOS performance report the right to equality and freedom 2017 – 2018, 480 UPS staff and from discrimination for person in 850 UPF staff were trained in detention excludes sexual observation of human rights.123 orientation and gender identity, and the omission is not by accident since However, as is the case with the the Prisons Act is as recent as 2006 police, UPS’ initiatives have no when issues of sexual orientation specific consideration for LGBT and gender identity had come to the people. The prisons official fore, and after the Constitution had interviewed insisted that been amended to include a homosexuality is illegal in Uganda prohibition on same-sex marriages. and they cannot make special The laws criminalising same-sex 124 provision for illegality. He also relations as well as cultural and claimed ignorance of the existence religious practices that discriminate of LGBT people in prisons, which against LGBT persons all combine to should be unacceptable given his create a situation where LGBT position as the overall overseer of detainees will not be treated the human rights in the whole of UPS same way as other detainees in the 125 since 2009. criminal justice system. As such, the legal and policy framework governing the protection of persons in 2.5 Conclusion detention in Uganda does not adequately recognise or cater for Whereas it is clear that the LGBT persons, and thus leaves a lot international legal framework of room for violation of the rights of envisages the protection of LGBT LGBT persons. persons in detention from violence or discrimination based on sexual orientation and gender identity as demonstrated in the Yogyakarta Principles, Ugandan law falls short. Uganda’s Constitution and laws provide safeguards for persons in detention and those in prison, and steps have been taken to put in place guidelines that ensure that the legal framework is implemented. However, none of the laws, policies or guidelines expressly include LGBT

123 https://www.jlos.go.ug/index.php/document-centre/performance-reports/annual/418- annual-performance-report-2017-2018/file. 124 As above. 125 As above.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 31 imprisonment in Uganda: A case study of Kampala 3. MANIFESTATIONS AND TRENDS OF HUMAN RIGHTS VIOLATIONS SUFFERED BY LGBT PERSONS IN DETENTION AND IMPRISONMENT

3.1 Introduction detention cells and prisons was found to be tenuous. Whereas there The gaps in the legal, policy and were no reported cases of outright institutional safeguards identified in torture as defined in the CAT and the foregoing Chapter fuel human the Prevention and Prohibition of rights violations against LGBT people Torture Act 2012, numerous in custody of Uganda’s police and instances which violate human prisons. There are various violations dignity and amount to cruel, inhuman that occur against LGBT persons and degrading treatment were who are in detention and recorded. imprisonment and these are the subject of this chapter. This chapter presents the findings of the study 3.2.1 Manner of arrest, treatment and analyses the demonstrated and transportation by Police trends. The findings are organised Arrests of LGBT persons are usually according to the rights violated characterised by violence, chaos and during detention and imprisonment abuses unleashed on LGBT people in the custody of Police and Prisons. by police officers. A recent example is the arrest of 125 persons from Ram Bar Kampala on 11th November 3.2 Respect for Human 2019. Police officers raided the bar, a popular hang-out spot for the dignity and LGBT community in Kampala, and Freedom from started arresting the partiers Torture, Cruel, indiscriminately. In the ensuing Inhuman and chaos and stampede, many lost their Degrading property such as mobile phones while others were injured trying to Treatment or escape.126 Those who were arrested Punishment were bundled onto the trailers of Upholding the right to freedom from Police pick-up vans without regard cruel, inhuman and degrading for their dignity or safety. Further treatment or punishment in police injuries and suffering were sustained

126 FGD with Lesbian and Bisexual Women held at Kampala on 19th November 2019 and further confirmed by individual interviews with R19, R20, R21 and 23, which were held in Gayaza, Wakiso District on 27th November 2019.

Human rights abuses and violations against Lesbian, Gay, 32 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala on the van itself where several Police stormed the bar and suspects were crowded onto the van ordered everyone to sit down. past midnight in the cold.127 Those who did not sit down were beaten while a few others The Ram Bar arrest came at the back managed to escape. It was my of another incident of violent arrest first time to mix with the LGBT and detention of gay men who were community members and very sheltered at the premises of Let’s few knew me. I tried to ask for Walk Uganda, an LGBT organisation reasons why I was being arrested th (the Let’s Walk arrests). On 20 but a police officer gave me a October 2019 police officers from hot slap in the face instead. We Kyegera Police station were called in were loaded on police vans and to protect sheltered gay men from a taken to CPS. I remained terrified village mob which had attacked as I did not want anyone in my 128 them. On arrival, the police circles including my family rounded up 16 of the men in shelter members to know about my and drove them to Nsangi Police status. The following day, I was Station under the guise of protecting forced to call my dad and when them. At the police station, they he arrived at CPS he was furious were insulted, preached to, and because he had seen me on TV. slapped by a self-professed Christian Police had conducted the arrest 129 District Police Commander (DPC). in the presence of the media As if that is not enough, two days which they had invited. The later, all the 16 were loaded on following day, we were remanded police pick-up van and driven to to Luzira Prisons, and by the police Barracks for anal time we arrived at 10pm, all the 130 examinations. At the barracks, prisoners knew that there was a they were kept in the van while it group of LGBT coming because was raining as one by one they were of the police publishing the taken in for anal examinations. arrest. R24, a gay student, who was arrested The arrests at Ram Bar and Let’s during Ram Bar arrests described Walk are reminiscent of the 2016 what happened in the following events at the LGBT Pride event at terms: Club Venom in the Kampala suburb of Kabalagala. On 4th August 2016 during the third night of the LGBT Pride celebrations, police stormed the venue under the pretext of stopping the celebration of an

127 KII interview with R21 held in Gayaza, Wakiso District on 27th November 2019. 128 Interview with R25 and representative of Lets Walk Uganda held on 2nd December 2019. 129 As above. 130 As above.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 33 imprisonment in Uganda: A case study of Kampala unlawful “gay wedding”.131 They Transgender people suffer unique locked all the club’s exits and challenges. They are often forced to violently arrested 16 LGBT people shave their hair and fondled in the whom they assaulted, humiliated, chest, breasts and private parts to and photographed with threats to prove that they are either male or publish their pictures. The most female.135 When arrested at night, affected were transgender women they are forced to spend nights at and men who were specifically police receptions awaiting decisions singled out for their appearance.132 on placement in male or female The arrested people were detained cells.136 A paralegal offering legal at Kabalagala Police Station but support to LGBT people, referred to released without charge before transgender people as ‘white chicken dawn.133 Narrating his experience which cannot hide’ from the Police137. during the arrest a transgender man A representative of a transgender explained: “When they originally organisation observed that picked us up they said a lot of transgender people are generally the homophobic things and told us we face of the LGBT community and the were immoral. One of the officers police arrests as they are seen as slapped me in the face and ordered for men behaving like women and me to be cuffed.” 134 women behaving like men.138 He gave the following account of his The Ram Bar and the Let’s Walk own arrest in 2014: arrests are examples of what happens during group arrests. But I was arrested in 2014 with a individual arrests are not any trans-man colleague and taken different as several accounts of LGBT to Jinja Police Station. About 16 people who were arrested police officers abandoned their individually pointed to the same desks and surrounded us, treatment. ridiculing and poking fun at us. They stripped us naked while wondering if we were male or 131 “Uganda: Police attack LGBT Pride event; arrests, beatings, assaults on participants”, female. They kept us at the 139 Human Rights Watch available at https:// reception all night. www.hrw.org/news/2016/08/05/ uganda-police-attack-lgbti-pride-event. This account was also confirmed by the leader of an organisation which undertakes strategic litigation in an interview on 25th November 2019. 132 As Above. 135 Interview with representative of Tranz 133 As Above. Network, held at Kampala on 27th 134 “Uganda Police Storm Gay Pride Event, November 2019. Arrest More than a Dozen People”, 136 As above. NBCNews, available at https://www. 137 Interview with SK, a Paralegal, held in n b c n e w s . c o m / fe a t u re /n b c - o u t / Kampala on 27th November 2019. ugandan-police-storm-gay-pride-event- 138 arrest-more-dozen-people-n623681 As above n 135. accessed on 3rd December 2019. 139 As above n 135.

Human rights abuses and violations against Lesbian, Gay, 34 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala All the humiliation, abuse and each day and drinking water was violation of transgender people is only available at the water taps in most times done by the police the toilet sinks.145 Girls could not officers for fun as they seem to enjoy access sanitary pads and sanitary it.140 towels until the following day at 7pm. 3.2.2 Conditions in police At some stations, LGBT suspects detention have been beaten and physically Conditions in most police cells were assaulted by Police officers. Two described as inhuman.141 Most police police stations which were stations do not have facilities for prominently pointed out are detention of human beings in Police Station and Nsangi Police dignified conditions. This reality was Stations.146 An unnamed officer at borne out by the testimonies of Ndeeba Police Station is known to some of the LGBT people who were beat suspects and have their hair arrested in the Ram Bar raid and shaved. At Nsangi police station, detained at Kampala Central Police there is an officer known to pepper Station (CPS) on th 11 November his slaps with shouting vulgarities 2019.142 According to the such as ‘how can you a boy, allow to testimonies, for 2 days around 25 be fucked in the anus’147. lesbian and female bisexual people were packed in a small corridor The FGD with transgender people th adjacent to toilets which still had the on 19 November 2019 confirmed sign plates marked “TOILET” pinned poor conditions at Central Police on the doors.143 The detention Station in Kampala where several of corridor was also adjacent to them were detained after the Ram bathrooms and waste water flowing Bar arrest. They narrated that in one from the bathrooms flooded the small cell there were over 200 148 corridor floor.144 There was only one detainees. The cell was so packed meal of posho and beans at 3pm of that they could only stand with no space for sitting, squatting or even

140 Above no, 136. 141 Interview with Legal Aid Lawyer and Human Rights Expert, held at Garuga, Wakiso District on 25th November 2019. 142 FGD with Lesbian and Bisexual women held at Kampala on 19th November 2019. 143 FGD with Lesbian and Bisexual Women held at Kampala on 19th November 2019. Also repeated in FGDs with Gays and Bisexual Men and another FGD with transgender persons held on the same day. 144 As above. 145 As above. 146 As above. 147 Interview with Legal Officer, Access to Justice, HRAPF during an interview held in Kampala on 20th November 2019. 148 FGD with transgender people held at Kampala on 19th November 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 35 imprisonment in Uganda: A case study of Kampala sleeping. They had to spend all the were not only dirty but also torn and two days standing and squeezed recycled among prisoners. Since body to body, face to face and each prisoner had one set, it could shoulder to shoulder with no only be washed during bathing and breathing space.149 re-worn when still wet.154 Prison wards were also reported to be However, apart from the inhuman overcrowded with over 180 conditions, the detainees conceded prisoners packed in small wards that while at Kampala CPS, they which meant they could only sleep were not particularly harassed or on one side with no space to turn or humiliated by the police officers. In change position.155 one’s detainee’s view, the police officers ‘let them be.’150 Prisoners were also subjected to forced labour in the form of digging, peeling potatoes and cleaning toilets. 3.2.3 Conditions and treatment at Digging happens from 8am to 3pm Luzira Prisons either around the prison or in outside At Luzira Prisons, treatment was private farms. equally inhuman if only slightly better. On arrival, the prisoners were The food provided in Luzira prisons ordered to undress and remove all is made of posho and beans. The their clothes including underwear food was said to be half cooked and and shoes. This procedure, which contained weevils and there was would take around 5 minutes is only one meal per day served at known as search. Transgender 1:30pm. The maize flour was made people were subjected to longer from milling maize grains and entire searches as prison warders tried to maize cobs. Not only that, prisoners prove if one is male or female.151 In often miss meals especially those one cruel incident, a transgender who are taken out to dig and are female was forced to kneel down returned to prisons past 6pm. Unlike and the warders used a torched to at Police where there is only one check her private parts to confirm meal per day, at Luzira Prisons, that she was female.152 All the private inmates are served breakfast of clothing items were collected from porridge. All these conditions make them and they were each handed the feeding conditions unsuitable for one set of the yellow prison people with medical conditions such uniform.153 The prison uniforms as ulcers and other stomach

149 Above no. 144. 150 R21 during an interview at Gayaza, Wakiso district, on 27th November 2019. 151 As above. 152 As above. 153 Above no. 144 and 149. 154 As above. 155Interview with R14, R18 and R17 held at Kampala on 19th November 2019.

Human rights abuses and violations against Lesbian, Gay, 36 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala complications and even those on compliant with some basic human ARV programs.156 Like at Kampala rights standards.161 It was reported CPS, drinking water was only that prisoners at Luzira remand available from sinks in toilet rooms.157 prison and women prison, or at least some of them, even have old Prisons have been credited with mattresses and old blankets and the taking strides to get rid of the bucket wards are equipped with television phenomenon where in-cell buckets sets. There were proper bathing are used as toilets by building shelters and toilet facilities and 158 toilets. However, prisoners violence among inmates is prohibited. reported that there is no toilet paper With the exception of the occasional and they are forced to use their taunts and the challenges faced by 159 hands to clean themselves. transgender people, there were no One practice which transcended major accounts of discrimination or both the police and prisons was marginalisation of LGBT people in officers alerting inmates that they Luzira prisons. The maltreatment had brought LGBT persons, tacitly such as overcrowded wards, forced encouraging the inmates to undressing, availability of one set of marginalise the new arrivals. That uniform and forced labour, are not said, no major incidents of violence limited to LGBT prisoners but all or mistreatment were reported inmates, which makes them part of inside cells and prison wards other the general structural and than discrimination occassioned by administrative challenges faced by taunting abuses such as abasiyazi, prisons. sodomy, among others. Moreso, it was reported that violence is 3.2.4 Medical examinations forbidden among prisoners at Luzira Forced medical examinations were and none of the respondents common in police cells. These reported suffering any major included blood tests and anal violence. Only in one instance, a examinations, both of which are transwoman was reportedly raped done without the consent of the by inmates.160 subject. Again, the suspects are dragged onto police vans and Dire as the conditions may be at delivered to police friendly clinics prisons, the violations at police are where the tests are done. The much worse. Prisons seems to have respondents could not recall the made sufficient efforts to be

156 Above no. 144 and 149. 157 As above. 158 As above. 159 As above. 160 Interview with R14, a transwoman in Kampala on 19th November 2019. 161 Above no. 144, 149 and FGD with Gay and Bisexual men held at Kampala on 27th November 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 37 imprisonment in Uganda: A case study of Kampala names of the clinics except for those push two fingers in the anus. He involved in the Let's Walk arrests would then say that he has done who cited being taken to Nsambya the anal examination and Police barracks for medical concluded that you had anal examinstions. Moreover, after the penetration and therefor you are tests the suspects are not granted gay. We were also subjected to access to the results.The majority of HIV tests. The exercise went on LGBT respondents had been sub- until 1 o’clock in the night.162 jected to some form of medical tests. Tests for Trans-people were often Thus, both the medical examinations humiliating as examining doctors themselves and the manner in which and nurses mused about the gender they are carried violate the rights to of the person being tested. privacy, personal dignity and freedom from discrimination. R25, a gay man, narrated his experience of being subjected to anal examinations after the Let’s Walk arrests: 3.3 The right to personal liberty On the fourth day in detention Violations of the right to liberty (at Nsangi Police Station), we featured prominently during the were driven to Nsambya Police study. Violations took the form of Counter Terrorism Unit. We unlawful arrests, unlawful detentions were packed in a room. One beyond the constitutional limit of 48 gentleman addressed us as a hours, harassment of lawyers and father, police man and a doctor. paralegals representing LGBT He told us he was going to persons, unconscionable bail and conduct medical examination bond terms,and demands for bribes. one by one. The procedure was inhuman and humiliating. The Police officer categorically 3.3.1 Unlawful detention in Police stated that he was doing custody beyond the something he hated because he constitutional 48 hours equally hated the vice. The constitutional requirement to The Doctor would first release or produce in a court of law interrogate each one of us and of any person in police custody is how they were recruited into largely disregarded. Several of the homosexuality and by who. He respondents reported being detained would then require you to bend at police for days or even weeks. face down and order you to During an FGD with lesbian and open your anus. He called for a bisexual women who had been nurse to bring and hold a torch detained in the criminal justice on the buttocks. He would then system, it was revealed that R5 was

162 R25 during an interview held in Kampala on 3rd December 2019.

Human rights abuses and violations against Lesbian, Gay, 38 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala detained at Kisugu Police Station for Amounts payable range from as low 3 weeks, those who were arrested at as UGX20,000 to as high as Ram Bar were detained at CPS for 3 UGX1,000,000 but the common days,163 R4 spent 2 and a half days at average seems to be around the Kyamula Police Station at Salaama region of UGX100,000 – Road, R6 spent a whole week at UGX200,000 with higher figures Lungujja Police, R14 was detained at being paid in limited cases.165 What Lungujja Police Station for 7 days, R4 is clear though is that it is difficult to spent two days at Katale Police in obtain police bond without offering

Kawempe, the Let’s Walk detainees to pay money in return.166 It is also spent 3 days at Nsangi Police Station important to note that payments of while another LGBT person was this nature are bribes to police detained at Kabalaga Police station officers. Although most times the for 5 days.164 police carry out arrests with the intention of obtaining money from The highlighted accounts show that these suspects, the suspects disregard of the 48-hour themselves always initiate giving constitutional guarantee is a the bribes because of the desire to normalised practice in Police custody keep away from the humiliation and it has become the rule not the and torment from the exception. The IGP’s circular of 3rd cells and all other people that know July 2019 cautioning all police them.167 However, with the help of officers against violation of the 48 – lawyers and paralegals, police bond hour rule is testimony to the was often obtained without payment magnitude of the problem. of bribes. For example, the Let’s Walk detainees did not pay bribes because they were represented by 3.3.2 Conditions for grant of police the HRAPF legal aid team.168 bond from police custody People released on police bond are Conditions imposed on LGBT usually required to report to police persons for the grant of police bond at regular intervals starting with bi- and court bail were explored. The weekly, then weekly and monthly findings show that police bond is until the charges are cancelled with generally for sale, in spite of it being expressly free under the Police Act.

163 R6, R7, R8, R10, R11, R12, R13, R14, R15 and R16 during FGD with Lesbian and Bisexual women held at Kampala on 19th November 2019. 164 Interview with AB, Paralegal, Kampala, 26th November 2019. 165 FGD with Gay and Bisexual men held at Kampala on 27th November 2019. 166 As above. 167 Interview with AB, Paralegal, Kampala, 26th November 2019 and Interview with SK, a Paralegal, held in Kampala, 27th November 2019. 168 Interview with representative of Executive Director of Let’s Walk Uganda, held in Kampala on 27th November 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 39 imprisonment in Uganda: A case study of Kampala no further action.169 This regular Youth on Rock Foundation, a gay reporting can go on for months. In organisation in Kampala which one case it had gone on for 8 months. among others assists LGBT people In another extreme case, a suspect to process LC recommendation who was granted bond at letters, identify sureties and prepare UGX500,000 was required to report production warrants, explained that to police after every two days for a LCs demand for payment to process month.170 The practice of requiring a the introduction letters. They paid suspect to regularly report to police between UGX10,000 and for months when there is no UGX20,000 for each letter. In evidence to sustain a charge is a addition, one has to provide definite abuse of the right to liberty. transport for sureties, and where a The abuse is aggravated when one is production warrant is required, some required to report within a very short money is paid to court officials to interval of two days as was the case process it. Since at present courts in the above cited. retain national IDs of sureties, there is a reluctance among people to stand sureties. If an LGBT person is 3.3.3 Conditions for grant of bail in prisons custody, there is need to

from Prisons custody process a production warrant, which

Interim release from Prisons custody is another costly process. These may be obtained through an requirements are onerous and application for grant of bail to the restrict the breadth of the right to

High Court, as is in most cases, to a personal liberty and the right to a

Magistrate’s Court. Upon satisfaction fair trial as guaranteed under the of the conditions discussed in the Constitution and the various foregoing paragraphs, bail may be international and regional granted. instruments. According to narrations from the Respondents, Court bail would 3.3.4 Legal representation in Police involve payment of the official bond custody fee of between UGX200,000 – Access to legal representation was UGX1,000,000. Although this fee is frequently cited as a challenge at refundable upon the termination of police. Almost all the respondents the court proceedings, there was no interviewed stated that upon arrest report of the refunds being made. and while in detention they were not Other conditions for bail are: sureties informed of the right to legal with national IDs and representation. However, lawyers recommendation letters from their and paralegals from HRAPF and Local Council I chairpersons, as well other legal aid organisations, and as surrender of the accused’s private lawyers, were often granted national ID. A representative of access to LGBT people in detention

169 Above no. 144 and 149. 170 Interview with R5, a gay man, held in Kampala on 19th November 2019.

Human rights abuses and violations against Lesbian, Gay, 40 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala and prisons. Indeed, all the lawyers at Prisons. Even treatment at police who participated in the study stations differed from station to confirmed that in spite of some minor station with extreme cases being challenges, they have always been exceptions. granted access to their LGBT clients.171 3.3.6 Charges and the right to be It has not always been smooth sailing informed of the reason for though. The Police was cited in a arrest number of instances where they were hostile to paralegals and lawyers. This is one of the most neglected Paralegals are ridiculed, harassed and aspects of the arrest and detention process. Most arrests involve the chased away.172 One of the worst cases saw the arrest of a paralegal police apprehending someone, who was detained at Police violently bundling them on a waiting police van and driving them to a Station.173 He was arrested and detained for one night and charged police station all the while hurling with obstructing justice when he commands and insults derived from the vocabulary used by the general insisted on talking to an LGBT client public to ridicule LGBT people.176 For who was in detention.174 In another incident, a HRAPF lawyer was example, when the Ram Bar arrestees arrested for a few hours at Mukono asked to know why they had been Police Station and charged with being arrested, the police officers’ reply was ‘you know what you did’. a public nuisance.175 She was released Arrested people only get to know of after HRAPF lawyers went to the station. During the Let’s Walk arrest, why they are arrested when they are the DPC of Nsangi Police Station was formally charged at police or in some cases when charges are read out in very hostile to lawyers and suspects 177 alike while flaunting her Christianity. court. Currently, most common charges preferred relate to public nuisance, drug abuse and in a few 3.3.5 Legal representation in prisons cases unnatural offences.178 Most of the respondents could not recall the Prisons on the other hand were exact charges which were levied reported to be more receptive and against them. compliant compared to police stations and no major incidents were reported

171 Interviewees included two lawyers in private practice and two lawyers who engage in pub;ic interest litigation. 172 Interview ECl, Paralegal at HRAPF held in Kampala 27th November 2019. 173 Above no. 112. 176 As above. 174 As above. 177 Above no. 144, 149 and171. 175 As above. 178 As above.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 41 imprisonment in Uganda: A case study of Kampala 3.4 Equality and non- stand. Kabalagala Police Station was pinpointed as the most abusive to discrimination LGBT people and its Officer in Charge of the Crime Investigations 3.4.1 Equality and discrimination in Department (OC CID) detains, Police custody abuses, tortures and humiliates Discrimination, marginalisation and LGBT persons in his custody with stigmatisation of LGBT people are impunity. He has taken LGBT matters practiced openly in Uganda Police as a personal crusade to the extent and Prisons facilities. In fact, it is as if that in one case before the Makindye this practice is institutionalised. One Court, when the complainant of the Police OC CIDs interviewed disappeared, he volunteered to sounded helpless but truthful when become the complainant.181 In he admitted that it was far-fetched another incident, the Spokesperson for him to imagine police officers for Kampala Metropolitan Police buying into the idea of respecting posted on his official Facebook human rights in regard to LGBT account declaring in a celebratory people.179 This is attributable to the mood that the police had arrested fact that most police officers are and detained homosexuals. The homophobic at a personal level, and message was later taken down by according to him there is nothing the spokesperson following much that the police leadership can complaints from LGBT activists.182 do about it. Asked why he did not reign in on the officers under his Police officers often openly address command, he lamented that if he LGBT persons in derogative terms as became too hard on them he feared ‘abasiyazi’ or nickname them he could be branded gay and ‘sodomy’ or sodomy tycoon. They sidelined.180 also openly encourage other detainees and prisoners to Similar sentiments were echoed by discriminate and abuse LGBT HRAPF's legal officer that police persons. Several respondents officers do not really follow the law reported that when they were and narrated accounts of police delivered to a police cell, the officers who openly boast that there delivering official announced to the are no human rights in the police inmates that the new arrival was cells. They have even coined a gay/lesbian. Inevitably, this would be mocking quip ‘you are the human interpreted by the inmates as an right, we are the human left’ to official invitation to mistreat the celebrate their anti-human rights LGBT person.

179 Interview with R27 held in Kampala on 18th November 2019. 180 As above. 181 Interview with Legal Officer, Access to Justice, HRAPF during an interview held in Kampala on 20th November 2019. 182 As above.

Human rights abuses and violations against Lesbian, Gay, 42 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala Complaints to the Police Standards responsible for human rights Unit (PSU) have not yielded anything violations.187 A legal aid lawyer who in terms of sanctions let alone has dealt with JLOS institutions for disciplinary action for the officers long, believes that PSU is under complained against. The HRAPF staffed, under-funded and largely legal officer opined that the PSU is neglected within the Police helpless and is no longer an effective hierarchy.188 tool of enforcing discipline in the UPF.183 When a complaint against a police officer is reported, usually a 3.4.2 Equality and discrimination in desk officer at PSU makes a phone Prisons The practice of referring to LGBT call to the concerned police station and asks for the release of the people as abasiyazi was also reported suspect in question and once the in Luzira prisons but it was not release is secured, no further steps prevalent and was generally on the wane. Several respondents reported are taken.184 The inefficiency of the police disciplinary procedures has that when they were delivered to a become a matter of deep public police cell or prison ward, the concern as highlighted by findings of delivering official announced to the a Saturday Monitor investigation inmates that the new arrival was which observed that police officers gay/lesbian. Inevitably, this would be found guilty of misconduct interpreted by the inmates as an official invitation to mistreat the and recommended for demotion had not only been maintained in the UPF LGBT person. It was reported however, that this practice is on the but were also redeployed.185 wane at Luzira prisons. Similarly, a 2018 PSU report showed that only 910 out of 2,383 complaints At Kigo Prison, a prison warder once reported to PSU had been suggested that LGBT inmates should be given special uniforms or successfully investigated and completed posting a return of identification tags or marks so that everyone can know.189 However, 38%.186 Police was also identified as the leading government agency there was nothing to suggest that this idea was ever implemented.

183 As above. 184 Above no. 112. 185 Stephen Kafeero, “Loopholes in the arm, police justice system”, Sunday Monitor 9th November 2019 available at https://www.monitor.co.ug/News/National/Loopholes-army-police-justice- system/688334-5343030-gumcu7/index.html 186 “Police disciplinary unit performing badly, says report”, Saturday Vision 23rd November 2019 at page 5. 187 As above. 188 Interview with a Legal Aid Lawyer and Human Rights Expert, held at Garuga, Wakiso District on 25th November 2019. 189 Above no 112.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 43 imprisonment in Uganda: A case study of Kampala However, in spite of this state of 3.5 The right to property affairs, a representative of an LGBT organisation believes that there has been a significant improvement in 3.5.1 Loss of personal property in the way LGBT people are treated police custody both at police stations and in The right to property is one of the 190 prisons. According to him, the only most violated rights upon arrest and significant violations involve calling detention or imprisonment. Several LGBT people derogatory names and respondents complained of losing encouraging other inmates to harass their property such as mobile 191 LGBT inmates. This improvement phones, laptop computers and is attributed to several years of especially cash to police officers. national and international advocacy, strategic litigation and sensitisation At police stations, accounts of and awareness building among property deprivation are less friendly. government institutions.192 He The most affected belongings identified one of the challenges at included laptops, mobile phones and police as the regular transfers of money. Most commonly, these items police officers which take away are sometimes confiscated as sensitised police officers and replace exhibits but not returned upon the them with new ones.193 A release of the suspect usually on representative of Chapter Four police bond. Suspects released on Uganda and a Legal Aid lawyer, also police bond are required to continue acknowledges the contribution reporting to police at regular intervals made by advocacy efforts to improve while ‘investigations into the case’ the general environment for LGBT are still ongoing. But even when the people in Uganda.194 regular reporting process has been terminated, the confiscated properties are retained and the owner has to keep following up until they get tired and stop, leaving the property with the Police.195 R5, a gay man, explained that upon his arrest and detention at Kisugu Police Station in 2014, his three phones,

190 KII Interview with representative of LGBT organisation held in Kampala on 21st November 2019. 191 As above. 192 As above. 193 As above. 194 Interview held in Kampala on 25th November 2019. 195 Revealed during the FGD with members of the Transgender community held in Kampala on 19th November 2019. Also, confirmed by Legal Officer, Access to Justice, HRAPF during an interview held in Kampala on 20th November 2019.

Human rights abuses and violations against Lesbian, Gay, 44 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala one laptop computer and cash of pressure and was produced before UGX100,000 were confiscated but the Entebbe Magistrates Court only the phones were returned to where he was met by ‘half of Entebbe him. His efforts to recover the town'.200 computer and the money failed.196 In another incident, R5 was forced to The study encountered a chilling sign a document he was not allowed account of an attempt, orchestrated to read at Kisugu Police Station. by Police, to extort property from an Unlike R2, R5 signed the documents LGBT person. R2, who was unaware of its contents. Whereas it nicknamed ‘sodomy tycoon’ by cannot be said that by signing the Police officers and the media, was documents he gave away his arrested with his friend from England property rights, it should be noted and detained at Entebbe Police that this the same respondent whose Station.197 He was taken before a laptop and money worth police officer and given an agreement UGX100,000 was taken were not to sign. According to him, the returned. agreement stated that he was transferring his two plots of land, one in Entebbe town and another 3.5.2 Loss of property in prisons within the Kampala Metropolitan Respondents reported encountering and his Lexus car to an unnamed a practice at Luzira Remand Prison person.198 They also asked for the whereby upon arrival at the Prison, money on his bank accounts. When new prisoners were asked to deposit he refused to sign, he was threatened all their property including money with being taken to court where he and personal items such as mobile would be sentenced to 20 years phones, watches, clothes, bags, imprisonment, within which time, he among others, at the reception for 199 would lose the property anyway. custody.201 Whereas there were no After completely refusing to sign the issues with the other property, agreements, he was taken to a room money involved a peculiar practise where his face was photographed whereby the officer receiving it for under the threat that the pictures custody offered to record an amount would be used for his criminal record. less than what was deposited and With legal support from SMUG then explained that the unrecorded lawyers, he refused to yield to the

196 FGD with Gay and Bisexual men held at Kampala on 19th November 2019. 197 Account narrated by R2 during an interview and FGD with Gay and Bisexual men held in Kampala on 19th November 2019 198 As above. 199 As above. 200 As above. 201 Revealed during FGD with Lesbian and Bisexual women held in Kampala on 19th November 2019.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 45 imprisonment in Uganda: A case study of Kampala balance was theirs.202 Upon release, it is the recorded amount which is returned to the owner. In one instance, an LGBT prisoner deposited UGX20,000 but UGX15,000 was recorded and eventually returned at release.203 Apart from money, all of the other possessions are usually returned to prisoners upon release. Suffice also to state that loss of money and property of the nature described here may not be limited to LGBT persons but deliberate extortions described here are clear manifestations of attempts to exploit the vulnerability of LGBT person.

3.6 Conclusion The findings and personal accounts of LGBT people who have been detained or imprisoned show that wide ranging violations still occur in police and prisons custody in spite of the several legal, policy and institutional mechanisms to promote and safeguard human rights. The UPF is particularly responsible for the most violations while efforts by UPS have reduced the violations but still fall short.

202 As above. 203 Interview with R18 held in Kampala on 19th November 2019

Human rights abuses and violations against Lesbian, Gay, 46 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala 4. CONCLUSIONS AND RECOMMENDATIONS

4.1 Introduction The UN OHCHR defines the core legal obligations of states with This section presents observations respect to protecting the human derived from an analysis of the rights of LGBT people to include: trends demonstrated in the findings. protecting individuals from It also proffers conclusions and homophobic and transphobic recommendations for the different violence, preventing torture and stakeholders engaged in cruel, inhuman and degrading administration of justice. treatment, repealing laws criminalising homosexuality and transgender people, prohibiting 4.2 Trends analysis discrimination based on sexual orientation and gender identity and The last decade has seen an apparent safeguarding freedom of expression, commitment to put in place measures association and peaceful assembly to promote human rights for people for all LGBT people.204 In spite of the in police custody and prisons. The several human rights based passing of laws such as the initiatives, there is little progress Prohibition and Prevention of Torture which has been made by Uganda to Act 2012 and the Human Rights satisfy these obligations during the (Enforcement) Act 2019 and the period under study 2009 – 2019. internal administrative initiatives by UPF and UPS to promote human The LGBT respondents and legal rights are steps in the right direction. practitioners such as lawyers and However, such measures have not paralegals acknowledged a reduction incorporated guarantees for in the regularity and cruelty of protection of LGBT people leaving human rights violations suffered by the legal and administrative LGBT people at the hands of police framework still insufficient to protect and prisons. An activist interviewed LGBT people. The trend instead has cited the recent Ram Bar and Let’s been to make laws and policies for Walk a rrests, which did not the general protection of human attract as much animation and rights of people in detention and frenzy from the police, public imprisonment without mention of and media as previous mass LGBT people or sexual orientation arrests. This is attributed to and gender identity as a ground for continued advocacy efforts by protection and non-discrimination. national and international civil society. The contribution of several

204 OHCHR, “Combating discrimination based on sexual orientation and gender identity” available https://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 47 imprisonment in Uganda: A case study of Kampala initiatives by both the UPS and UPF 4.3 Conclusions to this trend also deserve mention. However, discrimination of LGBT Uganda has put in place legal, policy people in detention and and institutional safeguards for the imprisonment facilities remains protection of human rights and rampant. freedoms of people in detention and imprisonment incorporated in the The general improvements recorded Constitution, national legislation and in the findings in this report are also the international and regional reflected in the Uganda Report of treaties which it signed and ratified. Human Rights Violations based on In addition to the binding legal Sexual Orientation and Gender provisions and obligations, each of Identity, 2018 which examined the JLOS institutions and other reported incidents and complaints government agencies, including UPF involving LGBT people for the year and UPS has adopted and is 2017.205 The report recorded 69 implementing administrative and human rights violations suffered by structural initiatives aimed at LGBT people in 2018 down from promoting the respect for and 74 which were recorded in the 2017 observance of human rights in report. It further demonstrates Uganda. The legal instruments and decrease in state inspired violations initiatives by UPF and UPS which stood at 43.4% compared highlighted in this report and to non-state actors. Therelentless advocacy by civil society UPF accounted for 97% of the and the LGBT movement have been state share, e merging as the key in improving the conditions in highest violator.206 T he first report prison and detention facilities and published in 2014 s howed 153 treatment of inmates. cases of violations, in 2 015 the number of cases was 89 which However, there are still gaping increased to 183 in the 2016 shortcomings as far as LGBT people report.207 The peak was reported in are concerned. Wide ranging human the 2016 report, but the following rights violations still occur to LGBT two reports indicated a steady people in police and prisons custody decline and acknowledged an fueled by the failure of the national improvement in the human rights legal, policy and institutional environment for LGBT people. framework to recognise the right of LGBT people to enjoy the constitutional guaranteed freedoms.

205 HRAPF et al, The Uganda Report of Human Rights Violations based on Sexual Orientation and gender Identify, 2018, increasing protections and reducing state violations, October 2018, available at https://www.hrapf.org/index.php/resources/violation-reports/118-the-uganda- report-on-human-rights-violations-based-on-sogi-2018/file accessed on 29th January 2020. 206 As above. 207 As above n 29.

Human rights abuses and violations against Lesbian, Gay, 48 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala In specific stations and posts, in spite specifically targeted at LGBT inmates. of the initiatives undertaken by the Police, human rights violations The role of the informal institutions targeting LGBT persons are still such as inmate communities and prevalent. These may be attributable leadership cannot be underestimated. to the homophobia and Whereas there were instances of overzealousness on the part of authorities delivering suspects and individual police officers and prisoners to detention cells and commanders. The fact that such prison wards with a tacit notice that officers carry out violations with the new arrival was LGBT, cases of impunity underlines lack of physical abuse by inmates were commitment within the Force to reported to have reduced. The combat the violations. The UPF, contribution of such informal bodies especially the PSU, is also faced with in violations is reducing especially in institutional and structural Prisons thanks to stringent bottlenecks relating to funding, disciplinary codes. human resources and training which adversely impact on the rights of detainees. 4.4 Recommendations Imprisonment facilities at Luzira Women’s Prison and Luzira Remand Prison have greatly improved To the Uganda Police Force especially in terms of hygiene and The Uganda Police Force is legally welfare. This is highlighted by the responsible for persons in its provision of proper toilet and shower detention, and it can do the following facilities, prohibition of violence to protect the rights of LGBT persons inside prison wards and enforcement in police detention: of a strict disciplinary code. Overcrowding in wards remains a i) The Police should avoid arbitrary major challenge but there are also arrests of LGBT persons simply challenges with clothing, nutrition on the basis of their suspected and treatment of prisoners. That sexual orientation. Arrests said, LGBT inmates are still ridiculed, should only be done where there threatened and occasionally is reasonable suspicion that an humiliated by both prison officials offence has been committed. and other inmates. ii) The Human Rights and Legal Violations arising out of Directorate should spearhead overcrowding, insufficient food and the development of guidelines / clothing, deprivation of property and standards that specifically guide lack of awareness and facilities for on the treatment of LGBT transgender people and inadequate persons in Police detention. training of prisons staff, are part of general administrative and structural iii) The Human Rights and Legal challenges faced by UPS and not Directorate should ensure that the UPF Human Rights Policies

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 49 imprisonment in Uganda: A case study of Kampala and Organs are permeated i) Develop guidelines/standards within the Force all the way to on the treatment of imprisoned the grassroot police stations and persons who identify as LGBT. posts across the country. ii) The practice of undressing and iv) The Police Professional humiliating inmates should be Standards Unit should be prohibited and replaced with revamped and fully staffed and more humane search procedures. facilitated to handle disciplinary complaints against Police iii) Efforts should be made to Officers. Its decisions and provide specialised imprisonment sanctions should be enforced facilities to transgender people by the Police Authority. so as to preserve their dignity and privacy. v) The practice of revealing the sexual orientation or gender iv) The practice of revealing the identity to other detainees sexual orientation or gender should stop in the interest of identity to inmates should stop protecting detainees from in the interest of protecting violence/sexual abuse by other detainees from violence/sexual detainees. abuse by other detainees. vi) More attention should be paid to where transgender detainees are To Parliament held in custody in order to prevent violence or sexual abuse Parliament is responsible for making against them. of laws and for holding the state accountable and in this respect vii) The Police should partner with should: organisations that work on LGBT issues/the Uganda Human i) Amend the Penal Code to repeal Rights Commission in order to section 145 which criminalises hold more human rights trainings same-sex sexual conduct, as well and sensitisations on LGBT as sections 167 and 168 which persons. prohibit vagrancy conduct, which form the basis for most arrests of LGBT persons. To the Uganda Prisons Services ii) Parliament should enact a law to A number of LGBT persons end up in prohibit all forms of violence and detention in prisons, and so the discrimination on any ground, Uganda Prisons Service has to take including sexual orientation, steps to protect this vulnerable against people in detention and group of persons. The Uganda imprisonment in Police, Prisons Prisons Service can do the following: and any other authorised places of detention in Uganda.

Human rights abuses and violations against Lesbian, Gay, 50 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala The President directive prohibiting all forms of violence and discrimination against The President is in charge of the prisoners and detainees, and executive arm of the government, specifically LGBT detainees. under which the Police and the Prisons operate and as such the President should: The Uganda Human Rights i) Issue a directive to the police to Commission stop arresting people for being

rogue and vagabond, as well as The Commission is responsible for

for carnal knowledge against the investigating cases of human rights order of nature. violations, and they should: ii) Direct the Police and Prisons to i) Prioritise the investigation of

treat LGBT persons in their cases involving violations of

custody with the dignity LGBT persons as they are a appropriate to all human beings. minority and vulnerable group ii) Continue training police officers and prisons officials on the The Minister of Justice and treatment of LGBT persons in Constitutional Affairs/Attorney detention General iii) Raise issues of violation of the The Ministry should do the following: rights of LGBT persons in detention in their annual report i) Initiate a process to repeal the to Parliament. sections 145, 146, 167 and 168 of the Penal Code by presenting a white paper to cabinet and subsequently a bill to parliament. The Equal Opportunities Commission ii) Initiate a process to repeal Article

31(2a) of the Constitution which The Commission is responsible for

prohibits same sex marriage as it providing redress in situations of

fuels discrimination against discrimination and in this regard LGBT people by feeding into and should: provides a legal justification to i) Investigate reports of the existing homophobia. discrimination against LGBT persons while in police detention or in prisons and produce The Ministry of Internal Affairs reports.

This is the ministry responsible for ii) Raise issues of violation of the both the Uganda Police Force and rights of LGBT persons in the Uganda Prisons Service. As such detention in their annual report the Ministry should issue a policy to Parliament.

Human rights abuses and violations against Lesbian, Gay, Bisexual and Transgender (LGBT) persons in detention and 51 imprisonment in Uganda: A case study of Kampala The Uganda Law Reform To mainstream Civil Society Commission These should do the following: The Commission is responsible for making recommendations for i) Make use of the provisions of amendment of laws. In this regard the Human Rights (Enforcement) the Commission should make Act 2019, in particular section 3 recommendations for the repeal of which enables filing of a petition sections 145, 146, 167 and 168 of on behalf of another person the Penal Code as they are the basis whose human rights have been of violation of the rights of LGBT violated as well as in the public persons. interest, and section 10 which provides for individual responsibility for violations of human rights as well as those To LGBT organisations of the Prohibition and LGBT organisations are established Prevention of Torture Act which for purposes of ensuring that LGBT also creates individual persons enjoy their rights, and in this responsibility in order to bring regard these organisations should: errant officers of the U ganda Police Force and/or the Uganda i) Document violations against Prisons Service to book. LGBT persons in detention and imprisonment and share these ii) Support LGBT organisations to with the Uganda police Force document violations against and the Uganda Prisons Service. LGBT persons in detention/ imprisonment. ii) Partner with the Uganda Police Force and the Uganda Prisons iii) Bring complains before the Service to conduct trainings and Professional Standards Unit of sensitisations on the rights of the Police and before the Uganda LGBT persons, especially geared Prisons Service on violations towards mid-level and lower against LGBT persons. They level officials of UPS and UPF. It should also ensure proper follow up. is the lower and mid-level officials who directly and iv) Extend legal support to LGBT regularly handle detainees and persons prisoners while the OCs, OC CIDs and DPCs are for the most part not involved in day-to-day lives of the inmates. iii) Partner with the Uganda Police Force and the Uganda Prisons Service to draft standards for the treatment of LGBT persons in the custody of UPF and UPS.

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Human rights abuses and violations against Lesbian, Gay, 54 Bisexual and Transgender (LGBT) persons in detention and imprisonment in Uganda: A case study of Kampala ABOUT HRAPF

Background

Human Rights Awareness and Promotion Forum is a voluntary, not for profit,and non-partisan Non-Governmental Organisation. HRAPF works for the promotion, realisation, protection and enforcement of human rights through human rights awareness, research, advocacy and legal aid service provision,with a particular focus on minorities and disadvantaged groups. It was established in 2008 with a vision of improving the observance of human rights of marginalised persons in Uganda.

Legal Status

HRAPF is incorporated under the laws of Uganda as a company limited by guarantee.

Vision

A society where the human rights of all persons including marginalised persons and Most at Risk Populations are valued, respected and protected.

Mission

To promote respect and protection of human rights of marginalised persons and Most at Risk Populations through enhanced access to justice, research and advocacy, legal and human rights awareness, capacity enhancement and strategic partnerships.

HRAPF’s Objectives

1. To create awareness on the national, regional and international human rights regime.

2. To promote access to justice for marginalised persons and Most at Risk Populations groups

3. To undertake research and legal advocacy for the rights of marginalised persons and Most at Risk Populations groups.

4. To network and collaborate with key strategic partners, government communities and individuals at national, regional and international level.

5. To enhance the capacity of marginalised groups, Most at Risk Populations and key stakeholders to participate effectively in the promotion and respect of the rights of marginalised persons’.

6. To maintain a strong and vibrant human rights organisation. Our target constituencies

1. Lesbian, Gay, Bisexual and Transgender (LGBT) persons 2. Intersex Persons 3. Sex Workers 4. Women, girls and service providers in conflict with abortion laws 5. People who use drugs 6. People Living with HIV and TB (PLHIV/TB) 7. Poor women, children and the elderly with land justice issues

HRAPF Values

• Equality, Justice and Non-Discrimination • Transparency, Integrity and Accountability • Learning and Reflection • Quality and Excellence • Teamwork and Oneness • Passion and Drive • Networking and Collaboration

Slogan

Taking Human Rights to all