Opinion; Subjects: UGANDA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
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GE.17-17904(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-ninth session, 21-25 August 2017
Opinion No. 57/2017 concerning Stella Nyanzi (Uganda)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in its resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 9 May 2017 the
Working Group transmitted a communication to the Government of Uganda concerning
Stella Nyanzi. The Government has not replied to the communication. The State is a party
to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2017/57
General Assembly
Distr.: General
11 October 2017
Original: English
A/HRC/WGAD/2017/57
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Submissions
Communication from the source
4.
Stella Nyanzi is a prominent academic, human rights defender and social activist in
Uganda. She is 42 years old and the mother of three children. According to the source, Ms.
Nyanzi has been a leading voice in Uganda in relation to women’s rights. Among other
things, she has advocated for the need to provide free sanitary pads to schoolgirls. She has
also been a vocal advocate for the rights of lesbian, gay, bisexual, transgender and intersex
people, a particularly sensitive topic in Uganda.
5.
The source notes that Ms. Nyanzi is also an outspoken social activist, who has been
critical of the Government and President Museveni. In the run-up to the general elections in
February 2016, she openly supported Kizza Besigye, the presidential candidate of the
opposition Forum for Democratic Change. She writes extensively on her Facebook page,
which has more than 140,000 followers. On 27 January 2017, Ms. Nyanzi referred to
President Museveni as a “pair of buttocks”. On 15 February 2017, she criticized Janet
Museveni, the First Lady and Minister of Education, for telling parliament that the
Government could not fulfil an electoral pledge to provide free sanitary pads to schoolgirls.
Lack of sanitary pads for schoolgirls has reportedly been pointed out as one of the leading
causes of girls dropping out of school in Uganda. Subsequently, Ms. Nyanzi started the
“Pads4GirlsUG” campaign to provide the pads herself. The campaign has collected
thousands of dollars and gained widespread publicity.
Background
6.
The source recalls that on 18 February 2016, Uganda held its fifth presidential and
legislative elections since President Museveni came to power in 1986. President Museveni
was re-elected with 61 per cent of the vote, while Mr. Besigye finished second with 36 per
cent of the vote. The source emphasizes that the rights to freedom of expression, assembly
and association continue to be violated in Uganda and that the media has been facing
increasing government restrictions and intimidation, leading to self-censorship. The source
also notes that although the Constitutional Court nullified the anti-homosexuality act in
2014, there are concerns that similar measures could still become law. Same-sex conduct
remains criminalized under the colonial-era law in Uganda. The source submits that the
new law on non-governmental organizations also raises concerns about the criminalization
of legitimate advocacy for the rights of lesbian, gay, bisexual, transgender and intersex
people.
Arrest and detention
7.
According to the source, Ms. Nyanzi’s social activism and criticism of the
Government has led to escalating harassment and repression of her by the authorities,
particularly in recent months. On 6 March 2017, she was summoned by the Directorate of
Criminal Investigation and Crime Intelligence for hours of interrogation regarding her
critical Facebook posts about President Museveni and the First Lady. On 19 March 2017,
she was prevented from boarding a plane to go to an academic conference in the
Netherlands. On 31 March 2017, Ms. Nyanzi was suspended from her job as a research
fellow at Makerere University, Uganda’s largest public university, for criticizing the First
Lady, who, as Minister of Education, is in charge of Makerere University.
8.
The source reports that on 3 April 2017, armed individuals raided the home of Ms.
Nyanzi and threatened her three children and a domestic worker. The source also reports
that the sister of Ms. Nyanzi was followed by armed individuals and some of her supporters
were attacked.
9.
According to the source, following months of continued harassment, the Ugandan
police arbitrarily arrested Ms. Nyanzi on 7 April 2017. That day, she had been invited to be
a keynote speaker at an event held in a hotel in Kampala. At the end of her speech, the hotel
was surrounded by “intelligence operatives” and Ms. Nyanzi tried to leave through a back
door. However, the source reports that eight men in plainclothes, three of whom were
armed, forcibly removed Ms. Nyanzi from her car and put her into the back of their vehicle.
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According to the source, the men were police officers from the “Flying Squad”, a unit in
charge of violent crimes.
10.
The source reports that Ms. Nyanzi was taken to the Kira Division police station,
where she was allegedly beaten and denied the opportunity to see her lawyer for 18 hours.
When she finally met her lawyer, her clothes had been torn and she had reportedly been
denied feminine hygiene products.
11.
On 8 April 2017, the police confirmed the arrest of Ms. Nyanzi and said that she
would be brought to court on two counts, namely cyberharassment and offensive
communication under the Computer Misuse Act. The source notes that on 11 April 2017,
the Inspector General of Police publicly stated that he had ordered the arrest of Ms. Nyanzi
because of her comments on social media.
12.
Also on 8 April 2017, a prominent journalist was reportedly abducted and driven
blindfolded to a secret location where she was beaten and interrogated for hours. The
kidnappers allegedly referred to the journalist’s social media post defending Ms. Nyanzi’s
criticism of the First Lady and the journalist was forced at gun point to delete all her social
media postings relating to issues for which Ms. Nyanzi has advocated.
Prosecution
13.
On 10 April 2017, Ms. Nyanzi appeared before the Bugandan Road magistrate’s
court. The source notes that according to the charge sheet, dated 23 March 2017, Ms.
Nyanzi was charged on two counts:
(a)
Count 1 (cyberharassment under section 24 (1) and (2) (a) of the Computer
Misuse Act, 2011) referred to the Facebook post of Ms. Nyanzi dated 28 January 2017
alluding to the President as “a pair of buttocks”, an expression considered obscene or
indecent;
(b)
Count 2 (offensive communication under section 25 of the Computer Misuse
Act, 2011) referred to the fact that between January and March 2017, Ms. Nyanzi
“willingly and repeatedly used electronic communication to post messages offensive in
nature via Facebook, transmitted over the Internet to disturb or attempted to disturb the
peace, quiet or the right of privacy of his Excellency the President of Uganda Yoweri
Kaguta Museveni with no purpose of legitimate communication”.
14.
Ms. Nyanzi pleaded not guilty to both charges. According to the source, Ms. Nyanzi
and her lawyers were caught off guard at the hearing, when the prosecution filed an
application for her sanity to be ascertained, invoking the Mental Treatment Act of 1938.
The prosecution wanted to detain her at a mental hospital for 14 days to carry out a mental
examination. The source stresses that Ms. Nyanzi and her lawyers were not given adequate
time to prepare their defence against this application because it was served on them at
court. The Court declined to hear Ms. Nyanzi’s bail application until after disposing of the
application by the prosecution for a mental examination.
15.
The case was adjourned to 25 April 2017 and Ms. Nyanzi was remanded to Luzira
prison, where she is still detained. The source reports that Luzira is a maximum security
prison, where death row inmates are detained, and that Ms. Nyanzi is allowed fewer visits
than the norm.
16.
The source notes that during an interview, the government spokesperson admitted
that the case of Ms. Nyanzi was not properly managed but also reportedly added “I doubt
Nyanzi or the forces behind her, which is Besigye and company plus the LGBT lobby, can
sustain an extended political fight with us Government on any issue”.
17.
According to the source, on 12 April 2017, doctors from a government mental
hospital attempted to conduct a forced mental examination of Ms. Nyanzi at Luzira Prison,
without her consent or a court order. Ms. Nyanzi managed to resist the forceful
examination. The source submits that mental examinations in Uganda are usually reserved
for offences such as statutory rape.
18.
The source reports that Ms. Nyanzi appeared before a High Court judge on 25 April
2017 to seek bail. Ms. Nyanzi also asked the High Court to stop the magistrate’s court from
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considering the application by the State to have her sanity ascertained. However, the High
Court denied this request and stated that her sanity should first be ascertained before
applying for bail. The High Court noted that the State could seek to carry out a mental
examination of anyone and that the magistrate’s court had the power to entertain such an
application. The High Court decided that Ms. Nyanzi could apply for bail only after the
determination of the application for her mental examination, currently scheduled for 10
May 2017. In the meantime, Ms. Nyanzi was sent back to Luzira prison. Nevertheless, the
source notes that the High Court judge criticized the magistrate’s court for not having given
Ms. Nyanzi the right to apply for bail.
19.
The source alleges that the detention of Ms. Nyanzi constitutes an arbitrary
deprivation of her liberty under categories I, II, III and V.
Arbitrary detention under category I
Violation of domestic regulations on pretrial detention
20.
The source notes that the Human Rights Committee has interpreted article 9 (1) of
the Covenant, ratified by Uganda on 21 June 1995, as meaning that “procedures for
carrying out legally authorized deprivation of liberty should also be established by law and
States parties should ensure compliance with their legally prescribed procedures”.1 Article 9
(1) requires compliance with domestic rules that define such procedures for arrest, such as
specifying when a warrant is required and permitting access to counsel.2 The source recalls
that article 23 (4) (b) of the Ugandan Constitution provides that the accused detainee must
be brought before a court no later than 48 hours from the time of his or her arrest. The
source submits that any time in excess of 48 hours that the accused spends in custody
without being brought before a court constitutes unlawful arrest and detention.
21.
According to the source, the detention of Ms. Nyanzi violates the constitutional limit
of 48 hours, as she was arrested and detained at the Kira Division police station on 7 April
2017 and only brought before a judge on 10 April 2017. As Ms. Nyanzi’s detention at the
police station exceeded 48 hours, the source submits that her detention was unconstitutional
and had no legal basis. The source considers that Ms. Nyanzi’s detention is therefore
arbitrary under category I.
Charges without merit and that cannot be used as a basis to justify continued detention
22.
The source submits that the two charges brought against Ms. Nyanzi cannot justify
her pretrial detention, as they were construed in an overly broad manner and the specific
application to Ms. Nyanzi violates both domestic and international law on freedom of
opinion and expression (article 29 of the Constitution of Uganda; article 19 of the Covenant
and article 19 of the Universal Declaration on Human Rights).
23.
Ms. Nyanzi is charged with sections 24 (1) and (2) (a) and 25 of the Computer
Misuse Act. Section 24 (1) and (2) (a) makes it an offence to “mak[e] any request,
suggestion or proposal which is obscene, lewd, lascivious or indecent”. The source notes
that the terms “obscene, lewd, lascivious or indecent” are not defined anywhere in the Act
and leave room for misinterpretation and discretion. Similarly, section 25 of the Act
criminalizes communication that “disturbs or attempts to disturb the peace, quiet or right of
privacy of any person with no purpose of legitimate communication”, without explaining
what is meant by “disturb or attempts to disturb” or “legitimate communication”. The
source submits that both sections are vaguely worded and are open to broad interpretation,
which makes it impossible for people to know which actions or communications would
violate these provisions.
24.
According to the source, as applied in the case of Ms. Nyanzi, the Government is
utilizing this overly broad interpretation to unlawfully restrict speech that is clearly
1 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,
para. 23.
2 Ibid.
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permissible and protected under international human rights law and the Constitution. As
such, the source submits that sections 24 and 25 of the Act cannot be considered as
“prescribed by law” and cannot be considered as legitimate restrictions to freedom of
expression. Since the provisions used to justify the pretrial detention of Ms. Nyanzi are not
legitimate laws, the source considers her detention as arbitrary under category I.
Arbitrary detention under category II
25.
According to the source, the detention of Ms. Nyanzi is arbitrary under category II
because her detention results from the exercise of her fundamental right to freedom of
opinion and expression.
26.
The source recalls that the Human Rights Committee has specifically recognized
that the protection provided by article 19 (2) of the Covenant “includes the right of
individuals to criticize or openly and publicly evaluate their Government without fear of
interference or punishment”.3
27.
The source also notes that the imprisonment of human rights defenders for speech-
related reasons is subject to heightened scrutiny. It refers to the Working Group on
Arbitrary Detention, which has recognized the necessity to “subject interventions against
individuals who may qualify as human rights defenders to particularly intense review”.4
This “heightened standard of review” by international bodies is especially appropriate
where there is a “pattern of harassment” by national authorities targeting such individuals.5
28.
According to the source, the Government of Uganda has a well-documented pattern
of attacking and attempting to silence its opponents and critics through harassment and
arbitrary detention. The source submits that the authorities targeted Ms. Nyanzi — a long-
time critic of the Government and the First Family — to prevent her from making
continued criticisms of the Government, including on issues such as its failure to uphold the
presidential promise to provide sanitary pads to schoolgirls.
29.
Given her work as scholar, social activist and human rights defender, the source
notes that Ms. Nyanzi enjoys special protection under international law with respect to any
detention related to her advocacy. The source submits that the detention of Ms. Nyanzi does
not meet the “particularly intense review” mandated by the jurisprudence of the Working
Group and should be considered arbitrary under category II.
Arbitrary detention under category III
30.
The source considers that the detention of Ms. Nyanzi should also be considered
arbitrary under category III for the reasons mentioned below.
Detention without a judicial order and violation of the right to be informed of charges
31.
According to the source, the authorities violated Ms. Nyanzi’s right to be detained
by virtue of a judicial order and to be informed of the reasons for her arrest, (as provided by
articles 9 (1) and (2) and 14 (3) (a) of the Covenant; principles 2, 10 and 13 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;
and article 23 of the Constitution).
32.
The source notes that the individuals who carried out the arrest of Ms. Nyanzi did
not introduce themselves; did not inform her of the reason for her arrest; and did not show
an arrest warrant. Moreover, the source reports that when Ms. Nyanzi was in detention and
without the support of a lawyer, the police interrogated her and attempted to record a
statement, to which she objected. Ms. Nyanzi was only formally informed of the charges
against her when they were produced in court.
3 See communication No. 1128/2002, De Morais v. Angola, Views adopted on 29 March 2005, para.
6.7.
4 See opinion No. 62/2012, para. 39.
5 See, for example, opinion No. 39/2012, para. 45.
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Violation of the right to be brought promptly before a judge and be tried without undue
delay
33.
According to the source, by failing to bring Ms. Nyanzi before the court within 48
hours, detaining her incommunicado for 18 hours before her lawyer could see her and
delaying her bail hearing through an application for a mental examination, of which she had
not been informed, the Government violated her right to be brought promptly before a
judge and tried without undue delay (as provided by article 9 (3) and (4) of the Covenant;
principles 4, 11 (1), 32 and 37 of the Body of Principles; and article 23 (4) (b) of the
Constitution).
34.
Given the absence of an arrest warrant, the source also submits that the police
violated section 17 of the Criminal Procedure Code which states that for a non-serious
offence a person must be released on a bond if it is “not practicable” to bring that person
before a magistrate’s court within 24 hours of their arrest. A request to release Ms. Nyanzi
on a police bond was reportedly denied by the Kira Division police officer under the pretext
that he did not have the authority to grant her such a bond.
Violation of the right to prepare an adequate defence
35.
According to the source, the authorities violated the right of Ms. Nyanzi to have
adequate time and facilities for the preparation of her defence (as provided by article 14 (3)
(b) of the Covenant and article 28 (3) (c) of the Constitution).
36.
On 10 April 2017, the prosecution applied to the magistrate’s court to submit Ms.
Nyanzi to a mental examination. The source reports that Ms. Nyanzi and her counsel were
not informed of such an application until they arrived at court and were not afforded
adequate time to prepare their defence. Because Ms. Nyanzi was not able to prepare her
defence against the application in advance, the hearing was adjourned, which also delayed
the hearing on her bail application.
Violation of the right to be presumed innocent until proven guilty
37.
The source considers that by placing Ms. Nyanzi in a maximum security prison with
convicted detainees; forcing her to undergo a mental examination; and allowing her fewer
visitors than other detainees, the authorities violated the right of Ms. Nyanzi to be presumed
innocent until proven guilty (as provided by articles 10 (2) (a) and 14 (2) of the Covenant;
article 11 (1) of the Universal Declaration on Human Rights; principles 8 and 36 of the
Body of Principles; and article 28 (3) (a) of the Constitution).
Violation of the right to be free from cruel, inhuman, or degrading treatment
38.
According to the source, by allegedly beating Ms. Nyanzi at the Kira Division police
station, not allowing her access to feminine hygiene products and attempting to force a
mental examination on her, the Government violated her right to be free from cruel,
inhuman and degrading treatment and torture and her right to be treated with humanity and
with respect for the inherent dignity of the human person (as protected by articles 7 and 10
(1) of the Covenant; articles 1, 2, 4, 5, 6 and 7 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment; article 5 of the Universal
Declaration on Human Right; principles 1 and 6 of the Body of Principles; and articles 24
and 44 of the Constitution).
Violation of the right to examine witnesses against the defendant
39.
According to the source, the prosecution asked the court to subject Ms. Nyanzi to a
mental examination based on an affidavit by the head of the police media crime unit who,
based only on his interactions with Ms. Nyanzi and without being an expert, claimed that
she had mental health issues. The affidavit claimed that Ms. Nyanzi went through “erratic
episodes” and “made unusual behaviour” while she was detained at the Kira District police
station. The affidavit also attached a photo of her protest in 2016 as evidence of her insanity
and claimed — without producing any evidence — that Ms. Nyanzi was at one time
admitted to a mental facility. However, the source points out that Ms. Nyanzi’s lawyers
were not allowed the opportunity to cross-examine the head of the police media crime unit,
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who was not present at the hearing, and therefore could not examine his character or
competency.
40.
The source considers that by failing to provide Ms. Nyanzi’s lawyers with the
opportunity to cross-examine the head of the police media crime unit, the authorities
violated the right of Ms. Nyanzi to examine witnesses against her (as protected by article 14
(3) (e) of the Covenant).
Arbitrary detention under category V
41.
Finally, the source submits that the detention of Ms. Nyanzi is also arbitrary under
category V, as her detention is due to her political opinions, political participation and
status as a social activist and human rights defender.
Response from the Government
42.
On 9 May 2017, the Working Group transmitted the allegations from the source to
the Government through its regular communication procedure. The Working Group
requested the Government to provide detailed information by 10 July 2017 on the current
situation of Ms. Nyanzi and any comments which it might have on the source’s allegations.
The Working Group also requested the Government to clarify the factual and legal grounds
invoked by the authorities to justify her arrest and continued detention, and to provide
details regarding the conformity of the relevant legal provisions and proceedings with
international law, in particular human rights treaties that it had ratified. Moreover, the
Working Group called upon the Government to ensure Ms. Nyanzi’s physical and mental
integrity.
43.
The Working Group regrets that it did not receive a response from the Government,
nor did the Government request an extension of the time limit for its reply, as provided for
in paragraph 15 of the Working Group’s methods of work.
Discussion
44.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
45.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations (see
A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
46.
The Working Group also reiterates that it applies a heightened standard of review in
cases where the freedom of expression and opinion is restricted or where human rights
defenders are involved.6 Ms. Nyanzi’s role as a prominent academic and social activist
defending women’s rights and the rights of lesbian, gay, bisexual, transgender and intersex
persons requires the Working Group to undertake this kind of strict scrutiny.7
6 See, for example, opinion No. 38/2017, para. 95; opinion No. 62/2012, para. 39; opinion No. 54/2012,
para. 29; and opinion No. 64/2011, para. 20. Domestic authorities and international supervisory
bodies should apply the heightened standard of review of government action, especially when there
are claims of a pattern of harassment. See opinion No. 39/2012, para. 45. See also the Declaration on
Human Rights Defenders, article 9 (3).
7 Human rights defenders in particular have the right to study, discuss, form and hold opinions on the
observance, both in law and in practice, of all human rights and fundamental freedoms and, through
those and other appropriate means, to draw public attention to such matters, see the Declaration on
Human Rights Defenders, article 6 (c). Human rights defenders have the right to investigate, gather
information regarding human rights violations and report on them, see opinion No. 8/2009, para. 18.
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Category I
47.
The Working Group will examine the relevant categories applicable to its
consideration of this case, including category I, which concerns deprivation of liberty
without invoking any legal basis.
48.
In the present case, the Working Group notes that on 7 April 2017, Ms. Nyanzi was
arrested by plain clothes police officers from the “Flying Squad”, as she tried to leave an
event in a hotel in Kampala, without being presented with an arrest warrant or informed of
the reasons for her arrest. She was held incommunicado in police custody for 18 hours,
during which time she was beaten, resulting in her clothes being torn, and denied feminine
hygiene products before she was allowed to see her lawyer. The Government has failed to
provide any legal basis for Ms. Nyanzi’s initial arrest and detention.
49.
In view of the fact that Ms. Nyanzi was also denied her right to challenge her
deprivation of liberty, the Working Group notes that article 9 (2) of the Covenant states that
anyone who is arrested shall be informed, at the time of arrest, of the reasons for his or her
arrest and shall be promptly informed of any charges against him or her. Article 9 (3) of the
Covenant provides that anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to exercise judicial power by
law. Furthermore, Human Rights Committee general comment No. 35 (2014) on liberty and
security of person provides that article 9 of the Covenant “requires compliance with
domestic rules that define when authorization to continue detention must be obtained from
a judge or other officer, … when the detained person must be brought to court and legal
limits on the duration of detention” (see para. 23).
50.
In view of the above, the Working Group determines that the Government has failed
to undertake the necessary formal procedures to establish the legal basis for Ms. Nyanzi’s
arrest and being held incommunicado without any access to her lawyer or family, as well as
her detention after the 48-hour limit and prior to her presentation before the court.
51.
The Working Group, therefore, considers that Ms. Nyanzi’s initial arrest and
detention lack a legal basis in violation of article 9 of the Universal Declaration of Human
Rights and article 9 (1) of the Covenant, falling within category I.8
Category II
52.
The Working Group recalls that holding and expressing opinions, including those
that are not in accordance with official government policy, are protected by article 19 of the
Universal Declaration of Human Rights and article 19 of the Covenant.9 In that regard, the
Human Rights Committee stated in its general comment No. 34 (2011) on the freedoms of
opinion and expression that the mere fact that forms of expression are considered to be
insulting to a public figure is not sufficient to justify the imposition of penalties, adding that
all public figures, including those exercising the highest political authority such as Heads of
State and Government, are legitimately subject to criticism and political opposition. The
Committee specifically expressed concern regarding laws on such matters as lese-majesty
(see para. 38).
53.
The right to freedom of expression in article 19 (2) of the Covenant includes the
right of individuals to criticize or openly and publicly evaluate their Governments without
fear of interference or punishment. 10 Ms. Nyanzi has been a prominent advocate for
women’s rights, in particular the provision of free hygiene products to schoolgirls, which
concerns not only the right to sanitation but also the right of access to education.11 She has
8 See also article 6 of the African Charter on Human and Peoples’ Rights.
9 Ibid., article 9.
10 See De Morais v. Angola, para. 6.7.
11 The International Covenant on Economic, Social and Cultural Rights obligates progressive extension
of safe sanitation services, particularly to rural and deprived urban areas, taking into account the
needs of women and children. See Committee on Economic, Social and Cultural Rights, general
comment No. 15 (2002) on the right to water, para. 29. See also General Assembly resolution 70/169,
17 December 2015, preambular para. 14 and para. 5 (e).
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also been a relentless defender of the rights of lesbian, gay, bisexual, transgender and
intersex persons and the right to health.
54.
Ms. Nyanzi criticized Janet Museveni, the First Lady and Education Minister, for
failing to fulfil the Government’s electoral promise to provide free sanitary pads and openly
backed the opposition in the 2016 general elections in the exercise of her right to take part
in government and the conduct of public affairs, directly or through freely chosen
representatives in accordance with article 21 of the Universal Declaration of Human Rights
and article 25 of the Covenant.12
55.
Before her arrest, Ms. Nyanzi was subjected to interrogation by the Directorate of
Criminal Investigation and Crime Intelligence for her Facebook posts criticizing President
Museveni and his wife, the First Lady and Education Minister, prevented from boarding a
plane to go to an academic conference abroad and suspended from her job at the largest
public university in Uganda, which is under the purview of the First Lady,13 had her house
raided and her sister and supporters were harassed by armed individuals.
56.
The Working Group expresses its grave concern at the public statement by the
Inspector General of Police that he ordered the arrest of Ms. Nyanzi for her social media
activity and the reported comment by the government spokesperson during an interview
that he doubted that “Nyanzi or the forces behind her, which is Besigye and company plus
the LGBT lobby, can sustain an extended political fight with us Government on any
issue”.14
57.
With regard to the prosecution under sections 24 (1) and (2) (a) and 25 of the
Computer Misuse Act 2011, the Working Group has been unable to find Ms. Nyanzi’s
deprivation of liberty for their alleged violations necessary or proportional for the purposes
set out in article 19 (3) of the Covenant. As noted above, the Human Rights Committee
considers that the mere fact that forms of expression are considered to be insulting to a
public figure is not sufficient to justify the imposition of penalties.15
58.
It is difficult for the Working Group to consider that Ms. Nyanzi’s postings could
plausibly threaten national security or public order, let alone public health or morals. There
was no suggestion by the Government that any of the permitted restrictions on the freedom
of expression found in article 19 (3) of the Covenant, such as restrictions that are necessary
for respect of the rights or reputation of others, applied in her case.
59.
For those reasons, the Working Group finds that Ms. Nyanzi’s deprivation of liberty
under the legal veneer of sections 24 (1) and (2) (a) and 25 of the Computer Misuse Act
2011 is in violation of articles 19 and 21 of the Universal Declaration of Human Rights and
article 19 and 25 of the Covenant, thus it is arbitrary and falling within category II.
Category III
60.
The Working Group has also considered whether violations of the right to a fair trial
and due process suffered by Ms. Nyanzi were grave enough to give her deprivation of
liberty an arbitrary character, falling within category III.
61.
In particular, the Working Group addresses the following considerations, which
have not been disputed by the Government:
12 See also article 13 (1) of the African Charter on Human and Peoples’ Rights.
13 Ms. Nyanzi’s suspension from Makerere University raises serious concerns about academic freedoms
and the autonomy of institutions of higher education. See Committee on Economic, Social and
Cultural Rights, general comment No. 13 (1999) on the right to education, paras. 39-40.
14 Such comments by public officials further raise concerns about violation of the presumption of
innocence, which is considered below with regard to category III. While it is true that the presumption
of innocence needs to be balanced with the public’s right to know in a democratic society, the latter
must be proportionate to the former. See, for instance, Bundesverfassungsgericht judgment, BVerfGE
35, 202-245, 5 June 1973 (Germany) and 26-1(A) KCCR 534, 2012 Hun-Ma 652, 27 March 2014
(Republic of Korea).
15 See general comment No. 34, para. 38.
A/HRC/WGAD/2017/57
10
(a)
Ms. Nyanzi was not brought promptly before a judge, but instead held
incommunicado by the police. That effectively nullified her right to recognition everywhere
as a person before the law (contrary to articles 6 and 9 of the Universal Declaration of
Human Rights and articles 9 (3) and 16 of the Covenant);
(b)
Ms. Nyanzi was not informed promptly and in detail of the nature and the
reasons for the criminal charge against her (contrary to articles 10 and 11 (1) of the
Universal Declaration of Human Rights and article 14 (1) and (3) (a) of the Covenant);
(c)
During her initial detention, Ms. Nyanzi was kept incommunicado, denied
contact with or visits from her family or lawyer and interrogated without her lawyer being
present and under torture or cruel, inhuman or degrading treatment, including beatings and
denial of sanitary pads, (contrary to articles 5, 10 and 11 (1) of the Universal Declaration of
Human Rights and articles 7 and 14 (1) and (3) (b) and (d) of the Covenant);16
(d)
On 10 April 2017, when Ms. Nyanzi was brought before a judge, she and her
lawyer were not informed in advance of the application by the prosecution for a mental
examination and she did not have adequate time and facilities to prepare her defence
(contrary to article 10 of the Universal Declaration of Human Rights, article 14 (3) (b) of
the Covenant and article 28 (3) (c) of the Constitution);
(e)
Ms. Nyanzi was denied bail for her refusal to take the mental examination,
which is usually reserved for offences such as rape, and was detained on remand in a
maximum security prison with death-row inmates, despite her status as an unconvicted
person, in violation of the principle of presumption of innocence (contrary to article 11 (1)
of the Universal Declaration of Human Rights and articles 9 (3), 10 (2) (a) and 14 (2) of the
Covenant);
(f)
Ms. Nyanzi’s lawyer was not allowed to cross-examine the head of the police
media crime unit, whose sworn affidavit was the basis for the prosecution demand that she
undergo a mental examination (contrary to article 10 of the Universal Declaration and
article 14 (3) (e) of Covenant);
(g)
The spokesperson of the Government, while admitting that Ms. Nyanzi’s case
was not properly managed, expressed a doubt that Ms. Nyanzi and the forces behind her
could sustain an extended political fight with the Government. Such a statement is
considered to be in violation of the principle of the presumption of innocence as stipulated
in article 14 (2) of the Covenant.
62.
The Working Group considers that holding a detainee incommunicado and
interrogating her without her lawyer being present and under torture or cruel, inhuman or
degrading treatment violates the minimum guarantees for fair trial and due process rights.
In that regard, the Working Group recalls the judgment by the International Court of Justice
holding that the prohibition of torture is part of customary international law and it has
become a peremptory norm (jus cogens).17
63.
The Working Group considers that the violations of Ms. Nyanzi’s right to a fair trial
are of such gravity as to give her deprivation of liberty an arbitrary character. Accordingly,
her deprivation of liberty falls within category III.
Sections 24 (1) and (2) (a) and 25 of the Computer Misuse Act
64.
The Working Group will elaborate further on the propriety of sections 24 (1) and (2)
(a) and 25 of the Computer Misuse Act, in view of the principle of legality and its effect on
the right to a fair trial. One of the fundamental guarantees of due process is the principle of
legality, including the principle of nullum crimen sine lege certa, which is particularly
relevant in the case of Ms. Nyanzi. The principle of legality, in general, ensures that no
16 See also United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures
for Women Offenders (the Bangkok Rules), para. 5.
17 International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgments, I.C.J. Reports 2012, p. 422. See also article 5 of the African Charter
on Human and Peoples’ Rights.
A/HRC/WGAD/2017/57
11
defendant may be punished arbitrarily or retroactively by the State. That means that a
person cannot be convicted of a crime that was not publicly accessible, nor can they be
charged under a law that is excessively unclear, or convicted under a penal law that is
passed retroactively to criminalize a previous act or omission.
65.
Laws that are vaguely and broadly worded may have a chilling effect on the exercise
of the right to freedom of expression, as they have the potential for abuse. They also violate
the principle of legality under article 11 (2) of the Universal Declaration of Human Rights
and article 15 of the Covenant, as it makes it unlikely or impossible for the accused to have
a fair trial.18 Furthermore, the Working Group has found in its case law that detention
pursuant to proceedings that are incompatible with article 15 are necessarily arbitrary
within the meaning of article 9 (1) of the Covenant.19
66.
The Working Group has also expressed its concern that antiterrorism laws “by using
an extremely vague and broad definition of terrorism, bring within their fold the innocent
and the suspect alike and thereby increase the risk of arbitrary detention” with the
consequence that “legitimate democratic opposition … becomes a victim in the application
of such laws” (see E/CN.4/1995/31, para. 25 (d)). Notably, with regard to article 15 (1) of
the Covenant, the prohibition of terrorist conduct must be framed in such a way that the law
is adequately accessible, so that the individual has a proper indication of how the law limits
his or her conduct and the law is formulated with sufficient precision so that the individual
can regulate his or her conduct (see E/CN.4/2006/98, para. 46).
67.
The concerns expressed with regard to the vague definition of terrorist conduct (see,
for example, CCPR/CO/81/BEL, para. 24) and other criminal offences, such as organized
crime (see, for example, CCPR/C/79/Add.115, para. 12), are equally pertinent for the
alleged acts criminalized by the broadly worded ban on criticism of the State authority. In
that respect, the Working Group notes with concern that sections 24 (1) and (2) (a) and 25
of the Computer Misuse Act contain unclear wording that denies foreseeability for
potential, unsuspecting defendants.20
68.
The Working Group also expresses its concern about the reported abuse of the
psychiatric system for political purposes by the Government. The Working Group notes
that the Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care states that a determination of mental illness shall be
made in accordance with internationally accepted medical standards and shall never be
made on the basis of political, economic or social status, or membership of a cultural, racial
or religious group, or any other reason not directly relevant to mental health status
(principle 4 (1) and (2)).
69.
The Working Group further notes the recommendations to States of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
concerning abuses in health-care settings, to safeguard free and informed consent on an
equal basis for all individuals without any exception, through a legal framework and
judicial and administrative mechanisms, including through policies and practices to protect
against abuses, and to adopt policies and protocols that uphold autonomy, self-
determination and human dignity (see A/HRC/22/53, para. 85 (e)).
70.
Furthermore, the Working Group notes with concern that a prominent journalist was
beaten and interrogated for hours at a secret location for defending Ms. Nyanzi’s criticism
of the First Lady in her social media postings and forced at gun point to delete all her
postings concerning the issues advocated for by Ms. Nyanzi. Such practices of reprisals and
those of holding persons incommunicado, place the victims outside the protection of the
law and deprive them of any legal safeguards.
18 See also article 7 (2) of the African Charter on Human and Peoples’ Rights and CCPR/C/KWT/CO/3,
para. 41.
19 See Human Rights Committee, communication No. 1629/2007, Fardon v. Australia, Views adopted
on 18 March 2010, para. 7.4 (2).
20 See also opinion No. 20/2017, para. 52.
A/HRC/WGAD/2017/57
12
Disposition
71.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Stella Nyanzi, being in contravention of articles 5, 6, 7,
9, 10, 11, 19 and 21 of the Universal Declaration of Human Rights and of articles 3,
7, 9, 14, 15, 16, 19, 25 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II, III.
72.
The Working Group requests the Government of Uganda to take the steps necessary
to remedy the situation of Stella Nyanzi without delay and bring it into conformity with the
standards and principles set forth in the international norms on detention, including the
Universal Declaration of Human Rights, the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment and the African Charter on Human
Rights.
73.
The Working Group considers that taking into account all the circumstances of the
case, the appropriate remedy would be to release Stella Nyanzi immediately and accord her
an enforceable right to compensation and other reparations, in accordance with
international law.
74.
The Working Group urges the Government to bring the relevant legislation,
particularly sections 24 (1) and (2) (a) and 25 of the Computer Misuse Act, which has been
used to restrict the right to freedom of expression, into conformity with the commitments of
Uganda under international human rights law.
Follow-up procedure
75.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Ms. Nyanzi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Nyanzi;
(c)
Whether an investigation has been conducted into the violation of Ms.
Nyanzi’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Uganda with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
76.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
77.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
A/HRC/WGAD/2017/57
13
78.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.21
[Adopted on 24 August 2017]
21 See Human Rights Council resolution 33/30, paras. 3 and 7.