RIGHTS OF ACCUSED PERSONS

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RIGHTS OF ACCUSED PERSONS

“IN CRIMINAL JUSTICE SYSTEM”

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RIGHTS OF ACCUSED PERSONS

“IN CRIMINAL JUSTICE SYSTEM”

KIIZA SMITH,

Bestselling law author

From the same author of “Principles of intellectual property”

THIS IS A RESEARCH-BASED BOOK [concerning a country called UGANDA (The Pearl of Africa), in East Africa]

Copyright © 2020 – Kiiza Smith, The TeeParkots Inc. publishers

All rights reserved. This book is protected under copyright laws. This book may not be copied or reprinted for commercial gain or profit without lawful permission by the copyright owner. The use of short quotations or occasional page copying for personal or group study is permitted and encouraged. Permission will be granted upon request.

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Other works

See also other books written by Kiiza Smith

1. PROPOSAL FOR THE BASIC PRINCIPALS IN INTELLECTUAL PROPERTY LAW BY KIIZA SMITH AND MAGUMBA INNOCENT

1. PRINCIPLES OF INTELLECTUAL PROPERTY LAW BY KIIZA SMITH AND MAGUMBA INNOCENT

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DEDICATION

With great pleasure, I dedicate this research to my loving sister Hon Namutamba Hellen, my parents, sisters, and brothers for the support and courage they offered to me during my academic life, and to all well-wishers of my success. To you people, you will always be special with the blessing from the Almighty God.

EPIGRAM

“Never judge someone's character based on the words of another. Instead, study the motives behind the words of the person casting the bad judgment. An honest woman can sell tangerines all day and remain a good person until she dies, but there will always be naysayers who will try to convince you otherwise. Perhaps this woman did not give them something for free, or at a discount. Perhaps too, that she refused to stand with them when they were wrong — or just stood up for something she felt was right. And also, it could be that some bitter women are envious of her, or that she rejected the advances of some very proud men. Always trust your heart. If the Creator stood before a million men with the light of a million lamps, only a few would truly see him because the truth is already alive in their hearts. Truth can only be seen by those with truth in them. He who does not have Truth in his heart will always be blind to her.”

― Suzy Kassem, Rise and Salute the Sun: The Writings of Suzy Kassem

ACKNOWLEDGEMENTS

I would also take this opportunity to thank my parents, brothers, and sisters for their support during my academic journey.

THE TABLE OF CONTENTS

TABLE OF STATUTES

 

The 1995 Constitution of the Republic of Uganda (as amended)

Magistrates Court Act Cap 16

Trial on Indictments Act Cap 23

The Police Act Cap 303

The Uganda Peoples Defense Forces Act 2005

The Children Act Cap 59

The Criminal Procedure Code Act

Court of Appeal Rules Direction 1996

The Supreme Court Rules Direction 1996

Universal Declaration of Human Rights 1948

International Covenant on Civil and Political Rights 1967

African (Banjul) Charter on Human and Peoples' Rights 1986

The Treaty for the Establishment of the East African Community(As amended on 14th December 2006 and 20th August 2007)

TABLE OF ABBREVIATIONS

UDHR --- “Universal Declaration of Human Rights of 1948”

ICCPR ---“International Covenant on Civil and Political Rights of 1996”

AFCHPR ---“African Charter on Human and Peoples’ Rights of 1981”

EAC ---“The Treaty for the Establishment of the East African Community”

MCA ---“The Magistrates Courts Act Cap 16”

TIA ---“The Trial on Indictment Act Cap 23”

CPC ---“The Criminal Procedure Act Cap 116”

UPDF ---“The Uganda Peoples Defense Forces Act 2005”

 

ABSTRACT

The study was about analyzing the rights of an accused person in Ugandan’s Criminal Justice System. The rights are enshrined in both the National Instruments like the 1995 Constitution of the Republic of Uganda (as amended), the Trial on Indictment Act, the Magistrates Court Act, the Police Act, the Children Act, the Criminal Procedure Act, the Penal Code Act among others and the International Instruments which have been ratified by the Republic of Uganda. The study groups these rights into three;

1. the rights before trial, which includes the right to protection from unlawful or unjust arrest, right to be kept in a place authorized by the law, the right to be informed soon after the arrest of the reasons for the arrest, the right to apply for a police bond, and a right to be brought to court within 48 hours;

2. the rights during trial proceedings and these include the right to a fair hearing, the right to a speedy and public hearing, the right to bail, the right to be presumed innocent until found guilty, the right to present his defense, the right to an independent and impartial trial, the right to have an interpreter, the right to present his witnesses and a right to cross-examine the witness; and

3. the rights after trial and these include the right to plead mitigation for sentence, the right to have days earlier spent in custody counted as part of the sentence, the right to a copy of the court’s judgment, and the right to appeal.

The study adopted the doctrinal research method to analyze the law provisions and the case law and found that to a great extent these rights have been violated by law enforcement organs in the name of national security, preventive arrest, and due to the ignorance of the populace.

It recommends that that state must do more in the field of sensitizing the people and the police officers of the existence of these rights to the accused person and the means of ensuring that justice is served minus violating the rights of an accused person.

CHAPTER ONE

INTRODUCTION

This research analyses the rights of an accused person stipulated in the 1995 Constitution of Uganda (as amended), Statutes of the Parliament, and the Ratified International Instruments. The research also focuses on how the constitutional rights of an accused person have been observed in the Ugandan criminal justice system. The research covers the journey from the time of the arrest to the time of either conviction or acquittal. The research groups these rights into three;

1. The rights before trial which includes the right to protection from unlawful or unjust arrest, the right to be kept in a place authorized by the law, the right to be informed soon after the arrest of the reasons for the arrest, the right to apply for a police bond, and a right to be brought to court within 48 hours.

2. the rights during trial proceedings and these include the right to a fair hearing, the right to a speedy and public hearing, the right to bail, the right to be presumed innocent until found guilty, the right to present his defense, the right to an independent and impartial trial, the right to have an interpreter, the right to present his witnesses and a right to cross-examine the witness.

3. The rights after trial and these include the right to plead mitigation for sentence, the right to have days earlier spent in custody counted as part of the sentence, the right to a copy of the court’s judgment, and the right to appeal.

The research identifies the challenges that hinder the full realization and observance of these rights available for the accused person which include corruption, political interference, and the ignorance of the populace of the existence of such rights. In the recommendation, the research outlines the sensitization of both the police officers and the members of the public of the existence of such rights and the mechanisms to ensure the full realization of these constitutional rights.

BACKGROUND OF JUSTICE

The administration of justice in Uganda is hinged on the Constitutional principles and rights enshrined in the 1995 Constitution of the Republic of Uganda (as amended) and the other subordinate laws. This is to the effect that all persons are equal before and under the law; and that all persons are entitled to a fair and speedy trial before a competent, independent, and impartial tribunal (court) established by law. The machinery and the procedure in our legal institutions must be maintained for the enforcement of the inherent and inalienable rights of an individual enshrined in the constitution. The procedure which governs court proceedings before it arrives at that conclusion has to be such as is fair, inspires confidence, and at the same time is not such as provides a wide escape route for the guilty, it must ensure the enforcement of rights as well as the proper administration of justice.

Criminal procedure is sometimes referred to as adjectival law in that it describes the application of the substantive criminal law and regulates the procedure by which criminal offenders are punished. The procedure spells much of the difference between the rule of law and rule by whim and caprice. The procedure means the mode of bringing to trial those suspected of criminal activities. The object of criminal procedure is to ensure that the accused is given a full and fair trial following the principles of natural justice.

The criminal procedure of trying a suspect is an elaborate one and runs from the time of arrest, through interrogation and charge, to the time of taking the suspect to court for taking a plea, trial, judgment, sentence, appeal, and revision of a case as appropriate. Throughout the entire criminal process, the accused person is entitled to certain rights by the 1995 Constitution of Uganda (as amended) as the grand norm and the other laws that govern the land.

The Constitution and the other subordinate laws provide for the rights available to an accused person, and their observance. The stages of observance of such rights include the following;

The rights before trial which includes the right to protection from unlawful or unjust arrest, the right to be kept in a place authorized by the law, the right to be informed soon after the arrest of the reasons for the arrest, the right to apply for a police bond, and a right to be brought to court within 48 hours.

The rights during trial proceedings and these include the right to a fair hearing, the right to a speedy and public hearing, the right to remain silent and refuse to testify, the right to bail, the right to be presumed innocent until found guilty, the right to present a defense, the right to an independent and impartial trial, the right to have an interpreter (where need be), the right to present witnesses and a right to cross-examine the witnesses.

The rights after trial and these include the right to plead mitigation for sentence, the right to have days earlier spent in custody counted as part of the sentence, the right to a copy of the court’s judgment, the right to appeal, and the right to apply for the prerogative of mercy by the president.

The above constitutional rights of an accused person are generally based on the presumption of innocence. It was traditionally expressed by the Latin maxim eiincumbit probation qui dicit, non qui negat. (The burden of proof is on the one who declares, not on one who denies). It is presumed that ‘everyone is innocent until proved guilty or until he pleads guilty’.An individual who has been charged with a crime is afforded the protection that he is innocent until he is found guilty by the competent court. This means that the burden lies on the prosecution to prove to the court that the accused is guilty beyond a reasonable doubt. If at the end of the case against the accused there is any reasonable doubt as to his or her guilt, the benefit of doubt must be resolved in favor of the accused. It is better than “ten guilty person escape than one innocent man to suffer”.

It is the obligation of the state to ensure that the rights of an accused person are protected and respected throughout the entire criminal trial; from the time of the arrest until the time of either acquittal or conviction.

It is trite law that an accused person is entitled to some rights which are stipulated in the various legal documents in Uganda. However, it is not a guarantee that such rights are fully observed and respected by the state institutions and the officers in charge. It is against that background that this research is analyzing these Constitutional rights and answering the question if such rights have been violated or protected from the time of the arrest to the time of either acquittal or conviction in the Ugandan’s Criminal Justice system.

STATEMENT OF THE PROBLEM

The jurisprudence on the constitutional rights (the rights before trial, the rights during the trial, and the rights after trial) of an accused person is highly developed because there is not only wide literature on the subject but the practice of observing and ensuring the observance of such rights by the state institutions throughout the trial process. In Uganda, the rights of an accused person are stipulated in the 1995 Constitution of the Republic of Uganda, Statutes, and the Ratified International Instruments on Human Rights. However, whereas the law on such constitutional rights is very clear both from the supreme law of the land and the other subordinate laws, it is still unclear whether it has lived its intended purpose. Many cases have shown that such rights have been observed yet a wide number of cases show that there is a long way to go to ensure a strict observance. This research analyzes the adequacy of the enforcement of constitutional provisions about the rights of an accused person and the insufficiency of the legal regime in upholding and enforcing these rights to the required standards. The general public and the accused persons themselves are ignorant of their human rights and the state has not done much to create public awareness thereof. As a result accused persons are denied their rights thereby occasioning gross injustice.

In Uganda, most of the people accused of criminal offenses are illiterate and ignorant of their constitutional rights. Therefore, many find themselves victims of the circumstances at hand.

A big number of people accused of criminal offenses are financially incapable of engaging lawyers. This has left many of them without any choice but to defend themselves despite their lack of legal knowledge. The poor tend to think justice is only left for the rich. The misconceived perception about courts. People in Uganda tend to shun away from courts either because they are ignorant or do not care. This has denied accused persons of the importance and benefits of the rights they are entitled to. Most people have lost confidence in our criminal justice system.

The political interference with the judiciary, the constitution under Article 128 provides for the independence of the judiciary. However in reality the independence is just a myth. In the case of Dr. (Rtd.) Kiiza Besigye & 22 v Attorney GeneralIn this case the government was seen violating the right of accused persons to bail and fair hearing as the judges were

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Verlag: BookRix GmbH & Co. KG

Tag der Veröffentlichung: 16.08.2020
ISBN: 978-3-7487-5369-8

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This research analyses the rights of an accused person stipulated in the 1995 Constitution of Uganda (as amended), Statutes of the Parliament and the Ratified International Instruments. The research also focuses on how the constitutional rights of an accused person have been observed in the Ugandan criminal justice system. The research covers the journey from the time of arrest to the time of either conviction or acquittal.