November 13, 2020

Trial Observation Report: Criminal Proceedings Against the 67

From December 2019 to November 2020, the American Bar Association (ABA) Center for Human Rights monitored criminal proceedings against 67 individuals in Uganda as part of the Clooney Foundation for Justice’s Trial Watch initiative. The 67 defendants were part of a group of 125 individuals arrested during a raid of Ram Bar, one of the only safe spaces for LGBTQ individuals in Kampala. Although the raid was purportedly carried out to enforce the Tobacco Control Act, the 67 defendants were subsequently charged with common nuisance. This shift in charges, along with comments made during the raid, the treatment of the defendants in prison, and the lack of evidence put forth by the prosecution, indicate that the accused were targeted based on their perceived sexual orientation, in violation of the right to equality before the law and non-discrimination. Their rights to be informed of the charges, to adequate facilities to prepare a defense, and to an impartial tribunal have likewise been violated. Overall, the pursuit of the case has been characterized by severe prosecutorial misconduct. 

In the late hours of November 10, 2019, the police conducted a mass raid of Ram Bar, a known gathering spot for Kampala’s LGBTQ community, ultimately arresting 125 individuals. A spokesperson for the Ugandan police told the media that the purpose of the raid was to enforce the Tobacco Control Act, which prohibits the use of shisha. Witnesses, however, reported that police indiscriminately arrested people found inside the bar and made homophobic remarks during the raid and at the police station. 

On November 12, 67 of the arrested individuals were charged with a different offense: common nuisance under Article 160(1) of the Ugandan Penal Code, which carries a punishment of up to one-year imprisonment. The court subsequently remanded the entire group to prison to await bail hearings. Review of bail applications started in mid-November and lasted until mid-December, meaning that defendants remained in jail for days to over a month (for those unable to produce the requisite sureties at their bail hearings). 

The 67 accused were divided into five groups for prosecution before the Buganda Road Chief Magistrate Court, with hearings starting at the beginning of December 2019 and continuing into November 2020. There are no significant factual differences between the cases and no justification for assigning accused to one or another group was proffered.  As of the writing of this report in November 2020, two of the five cases, covering 24 defendants, have been dismissed by the court for want of prosecution. 

Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the African Charter on Human and Peoples’ Rights (African Charter) prohibit arbitrary arrest and detention, which includes arrest and detention on discriminatory grounds. The United Nations Human Rights Committee has ruled that “discrimination” encompasses targeting on the basis of actual or perceived sexual orientation. African bodies have indicated the same with respect to the African Charter. 

As noted above, the conduct of the raid - indiscriminate arrests and homophobic comments - and the mismatch between the initial reason provided for the operation and the subsequent charges strongly suggest that the arrest and detention of the accused were motivated not by actual suspicion of criminal activity but by their perceived sexual orientation. The dearth of evidence put forth by the state - including the lack of individualized detail in the charge sheets and the prosecution’s failure to produce any witnesses or evidence over the course of almost a year of proceedings - are further indicia of such. Consequently, the arrests and detention of the accused were arbitrary. 

In addition, when the 67 defendants were charged on November 12, the authorities failed to bring the entire group to appear in person before the Buganda court. This violated their right under Article 9(3) of the ICCPR and Article 6 of the African Charter to be physically presented to a judicial authority in the immediate aftermath of arrest. One objective of the guarantee is to permit an inquiry into mistreatment in detention. 

In this case defense counsel reported that the accused were subjected to treatment that would violate the prohibition on cruel, inhuman, or degrading treatment reflected in Article 7 of the ICCPR and Article 5 of the African Charter. As stated by defense counsel, the accused were held in overcrowded and unsanitary conditions and denied access to adequate food and clean water. As a result, many reportedly suffered from diarrhea and/or contracted malaria. 

Meanwhile, defense counsel asserted that defendants were targeted by officials and other inmates - with impunity - because of their perceived sexual orientation and gender identity. Several defendants were reportedly subjected to prolonged body searches by the authorities as well as bullying by other inmates based on guards spreading the word that the new arrivals were LGBTQ individuals. At least one of the accused was reportedly raped in detention. No investigations into the alleged incidents have been launched to date. 

Once the trial started, violations persisted. Article 14(3)(a) of the ICCPR and Article 7 of the African Charter entitle individuals facing criminal prosecution to be informed of the alleged facts on which charges are based. The information must be sufficient to enable the preparation of a defense. In the proceedings against the 67 accused, the charge sheets lacked specifics as to the facts of the case, merely stating that the accused as a group had obstructed and inconvenienced the public. This was patently insufficient for counsel to construct a defense. 

The challenges facing defense counsel were exacerbated by the prosecution’s failure to disclose key materials, such as relevant parts of the case file. Article 14(3)(b) of the ICCPR and Article 7 of the African Charter guarantee criminal defendants adequate time and facilities for the preparation of a defense, including access to documents and other evidence the prosecution plans to offer in court. The prosecution’s behavior was particularly egregious as the Buganda court had continuously ordered the disclosure of the missing materials. 

This refusal to comply with court orders reflected serious misconduct on the part of the prosecution. As noted above, over the course of almost a year following the arrests, with between three and six hearings in each of the five cases, the state has failed to present any evidence or witnesses, instead repeatedly requesting the adjournment of proceedings. Under international standards on prosecutorial ethics, the state should not initiate or continue proceedings if there is insufficient evidence to support the charges. In the cases against the 67, the totality of the facts suggests that the state has pursued prosecutions without sufficient proof. 

Moreover, the proceedings against the 67 accused have violated the non-discrimination and equality guarantees enshrined in Articles 2 and 26 of the ICCPR and Article 6 of the African Charter. As referenced above, the United Nations Human Rights Committee has clarified that the ICCPR prohibits discrimination on the basis of real or perceived sexual orientation and gender identity. The African Commission and Court have yet to explicitly so hold with respect to the African Charter but have signified as much in their jurisprudence. 

In the present case, the conduct of the raid, the accused’s treatment in detention, the shifting of charges, and the lack of evidence strongly suggest that the accused were targeted on the basis of their actual or perceived sexual orientation. Further indicia of such include a judge’s comment in one case that the proceedings concerned “the misuse of bums” and the fact that that many months into the proceedings in two cases, state attorneys raised allegations regarding - respectively - gay sex and the promotion of homosexuality, with no explanation as to how these allegations related to the charges of common nuisance. 

Notably, although cases against two of the five groups have been dismissed and the remaining cases may yield the same outcome, for some accused the proceedings have already resulted in forcible outings and the loss of jobs, family, and friends. Meanwhile, for those whose cases have yet to be dismissed nearly one year after the raid, the ongoing hearings have created a state of uncertainty. The harm caused to date suggests that convictions may not have been the goal. Instead, the proceedings send a clear message to the LGBTQ community: evidence or not, conviction or not, the state can reach you. 

Finally, these proceedings highlight flaws in Article 160(1) of the Ugandan Penal Code as drafted, which make the provision particularly susceptible to misuse. Under Article 9(1) of the ICCPR and Article 6 of the African Charter, laws must define criminal conduct with sufficient precision to enable individuals to regulate their conduct accordingly. Article 160(1), however, criminalizes “any act not authorised by law” that “thereby causes any common injury, or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights.” Consequently, individuals may face Article 160(1) charges for a range of otherwise protected activities based on the vague standard of public annoyance and convenience. Article 160(1) thus violates Article 9(1) of the ICCPR and Article 6 of the African Charter. 

It should also be noted that the African Commission has raised specific concerns about petty offense laws like Article 160(1), so called because they criminalize minor crimes and therefore do not provide for serious penalties. The Commission has emphasized that the broadness of such laws facilitates the targeting of vulnerable populations. In line with these concerns, the case against the 67 demonstrates how Article 160(1)’s expansiveness can facilitate the targeting of actual or perceived LGBTQ individuals. 

In light of the above, in order to comply with its international and regional treaty obligations, Uganda should dismiss the remaining cases against the three groups and revise Article 160(1).

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