Decongest prisons, police cell to curb the spread of COVID-19

By Dr. Adrian Jjuuko

President Yoweri Museveni recently issued guidelines to prevent the spread of the coronavirus and the resultant COVID-19.

These guidelines mainly focus on decongesting places where many people gather, mainly schools, places of worship, and bars.

The enforcement of the Presidential directives is considered to be of such utmost importance that the Police has already started arresting and detaining people for violating them. 

The President and the Ministry of Health have to be lauded for taking the pandemic seriously and taking measures that have proven effective in the prevention of the spread of the Coronavirus.

However, the President left out police cells and prisons in his directives, yet they are overly congested and would be fertile breeding grounds for the Coronavirus.

Indeed, reports have emerged of scared prisoners escaping from Arua Main Prison partly due to what they see as insufficient measures being taken to contain the spread of the virus in prisons.

Soon after the Presidential directives were issued, the Chief Justice issued circular giving guidelines on how the courts are to operate during the period that the Presidential directives covered.

The guidelines effectively closed down the criminal courts for 32 days, with no prisoners and remandees presented to the courts except through the still limited video conferencing facilities in exceptional cases. Only pleas and bail applications for ‘serious' offences or where one has obtained a certificate of urgency will be heard, and only with a limited number of people present.

Whereas it is important that social contact should be minimised during this period in order to protect the health and lives of Ugandans, human rights guarantees, more especially those regarding the right to a fair trial, freedom from discrimination, and freedom from inhuman and degrading treatment should not be forsaken.

Indeed, under article 44 of Uganda's Constitution, the right to a fair hearing, habeas corpus and the right to freedom from inhuman and degrading treatment are non-derogable.

This means that the state cannot suspend its obligations to respect, fulfill and protect with respect to these rights, even in cases of emergencies.

The measures put in place by the President and the Chief Justice will mostly impact Ugandans that are already poor, marginalised and vulnerable.

The Police Spokesman, Fred Enanga, has announced that the Police will not be arresting people for petty offences, but he has also emphasised that they will continue to conduct arrests for ‘serious' offences, which include violating the presidential directives and charge them with among other crimes, disobeying lawful orders a crime that is punishable by two years imprisonment.

These ‘serious' offenders will most likely be the poor and marginalised who will have no option but to continue with their work in a bid to continue surviving in a shrinking economy.

They will also be the easier targets for the police to pick up for ‘disobeying lawful orders' and they are therefore the ones who will be kept in long term police detention waiting for the courts to open.

For the courts, it is completely unexpected that the cases of petty offenders and the ‘serious' offenders arrested for disobeying lawful orders will pass the ‘urgency' test set by the judiciary or that their cases will be considered ‘serious' enough for them to take pleas or to have their bail applications heard, or that they will have a lawyer to procure the certificate of urgency for them, much less find a court that will be willing to entertain such applications.

They will thus have to stay longer in police detention and/or prisons, leading to a violation of their rights to a speedy trial, freedom from discrimination, particularly on grounds of social or economic status, and the right to freedom from inhuman and degrading treatment.

It is therefore important that the Chief Justice reconsiders his position and specifically include petty offenders and persons arrested for violating the presidential directives among those for whom the courts shall be open without the requirement for a certificate of urgency.

It is also important that the Inspector General of Police issues a circular to all police officers stopping the detention of petty offenders for the period during which the Presidential directives remain in force, and instead encourage the police make use of cautions, police bond and mediations whenever possible to resolve the cases.

The President should also consider extending the earlier directive that he issued on releasing persons arrested for being idle and disorderly to cover all those in prisons over petty offences, which are offences punishable by sentences of less than one years' imprisonment or a small fine. This will help to decongest prisons and reduce the scare of rapid transmission of the Coronavirus and COVID-19 within the police and prison settings.

Parliament also needs to urgently consider introducing an express penalty scheme, similar to the one used in minor traffic offences to punish all those arrested for violating the presidential directives as an alternative to arrest and imprisonment in a situation where the courts are not working at full capacity.

Human rights, and especially the non derogable rights to a fair trial and dignity (freedom from inhuman and degrading treatment) can still be upheld even within the measures put in place to contain the coronavirus and COVID-19.

The writer is a human rights lawyer and the Executive Director of Human Rights Awareness and Promotion Forum (HRAPF), and human rights advocacy organisation