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A/HRC/WGAD/2021/20

Opinion No. 20/2021 concerning Douglas Tumuhimbise, Andrew Kibalama, Saddam Kateregga, Raj Jjuuko, Kelvin Kugonza, Denis Ssamula, Abbey Gwanvu, Henry Mukiibi, Kareem Yiga, Harris Tevin Kifuba, Jabel Tushabomwe, Ivan Kawooya, Ashiraf Walugembe, Jackson Mayanja, James Tendibwa, Mark Muhereza, Joel Oketch, Ronald Ssenyonga and Rodney Sheema (Uganda)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-05-12 · en UN

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]

Volltext (verifizierbarer Originaltext)

GE.21-09554(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninetieth session, 3–12 May 2021

Opinion No. 20/2021 concerning Douglas Tumuhimbise, Andrew

Kibalama, Saddam Kateregga, Raj Jjuuko, Kelvin Kugonza, Denis

Ssamula, Abbey Gwanvu, Henry Mukiibi, Kareem Yiga, Harris Tevin

Kifuba, Jabel Tushabomwe, Ivan Kawooya, Ashiraf Walugembe,

Jackson Mayanja, James Tendibwa, Mark Muhereza, Joel Oketch,

Ronald Ssenyonga and Rodney Sheema (Uganda)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work,1 on 30 December 2020 the Working Group

transmitted to the Government of Uganda a communication concerning Douglas

Tumuhimbise, Andrew Kibalama, Saddam Kateregga, Raj Jjuuko, Kelvin Kugonza, Denis

Ssamula, Abbey Gwanvu, Henry Mukiibi, Kareem Yiga, Harris Tevin Kifuba, Jabel

Tushabomwe, Ivan Kawooya, Ashiraf Walugembe, Jackson Mayanja, James Tendibwa,

Mark Muhereza, Joel Oketch, Ronald Ssenyonga and Rodney Sheema. The Government

replied to the communication on 18 February 2021. 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);

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2021/20

General Assembly

Distr.: General

9 July 2021

Original: English

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(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).

Submissions

Communication from the source

4.

Douglas Tumuhimbise, Andrew Kibalama, Saddam Kateregga, Raj Jjuuko, Kelvin

Kugonza, Denis Ssamula, Abbey Gwanvu, Henry Mukiibi, Kareem Yiga, Harris Tevin

Kifuba, Jabel Tushabomwe, Ivan Kawooya, Ashiraf Walugembe, Jackson Mayanja, James

Tendibwa, Mark Muhereza, Joel Oketch, Ronald Ssenyonga and Rodney Sheema are

nationals of Uganda. At the time of their arrest, these 19 individuals were between the ages

of 19 and 32 years old and are either gay, bisexual or transgender.

a.

Context

5.

The source explains that, although the Constitutional Court nullified the Anti-

Homosexuality Act in 2014, consensual same-sex sexual conduct is still illegal under a

colonial-era provision in the Penal Code that criminalizes “carnal knowledge of any person

against the order of nature” and provides for a penalty of up to life imprisonment. Moreover,

although the law does not expressly restrict the freedoms of expression or of peaceful

assembly on the basis of sexual orientation or gender identity, the Government has severely

restricted such rights for lesbian, gay, bisexual and transgender persons.

6.

The law does not prohibit discrimination against lesbian, gay, bisexual and

transgender persons in housing, employment, nationality laws or access to government

services. Such persons face discrimination, legal restrictions, societal harassment, violence,

and intimidation. The authorities allegedly perpetuate violence against lesbian, gay, bisexual

and transgender persons, block meetings organized by such persons and activists and

routinely arbitrarily arrest and detain them. Police officers also reportedly continue to carry

out forced anal examinations on men and transgender women accused of consensual same-

sex conduct.

7.

The source also reports that, in recent months, violence and discrimination against

lesbian, gay, bisexual and transgender persons have reached alarmingly high levels. In 2019,

some Members of Parliament had reportedly planned to introduce a bill that would

criminalize “promotion and recruitment” by lesbian, gay, bisexual and transgender persons,

and would include the death penalty for “grave” consensual same-sex sexual acts. Mass

arrests of lesbian, gay, bisexual and transgender persons were also reported.

b.

Arrest and detention

8.

According to the source, on 29 March 2020, the Mayor of Nsangi and security officers

raided a shelter for lesbian, gay, bisexual and transgender persons run by the Children of the

Sun Foundation in the town of Kyengera. During the raid, the officers arrested 23 individuals,

including the 19 individuals who are the subjects of the communication, without presenting

any warrant. Thirteen of the arrested individuals were residents of the shelter. Five of the

non-shelter residents were visiting from another shelter, one was a guest of a resident and

one was a resident nurse. The source claims that the police targeted this shelter and arbitrarily

arrested the individuals because of their real or perceived sexual orientation and gender

identity.

9.

According to a police statement made the day after the arrest, the individuals were

reportedly arrested for violating the stay-at-home orders and social distancing directives put

in place in Uganda to curb the spread of coronavirus disease (COVID-19). The source

explains that on 21 March 2020, the President of Uganda issued a detailed directive on

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preventative measures to be taken against the spread of the virus. The directive specifically

ordered people to stay at home and prohibited gatherings of more than 10 people.

10.

It is reported that these individuals were arrested for allegedly violating these

directives, and were charged with engaging in “negligent acts likely to spread infection of

disease”, in violation of section 171 of the Penal Code, and with “disobedience of a lawful

order”, under section 117 of the Penal Code, although the charge under section 117 was later

dropped.

11.

The source specifies that, after holding all 23 individuals in custody for one night, the

police released 4 of them on 30 March 2020 on health grounds. The remaining 19 individuals

were arraigned and remanded to Kitalya prison until 28 or 29 April 2020.

12.

According to the source, the police raided the shelter and arrested the individuals for

violating the President’s directive, even though at the time of their arrest they were in

complete compliance with the COVID-19 restrictions. As explained above, 13 of the

currently detained individuals were shelter residents and were peacefully in their residence

when the police raided their home and arrested them. The remaining six, although non-shelter

residents, were also in compliance with the law, because, although the President’s directive

set limits on the number of people allowed for a gathering, it did not establish limits on the

number of individuals permitted in a private home or shelter.

13.

In its initial statement following the arrests, the police claimed that they had raided

the shelter and subsequently arrested the individuals for violating the COVID-19 restrictions.

However, reports later revealed that the police charged the individuals with engaging in

“carnal knowledge” in violation of section 145 of the Penal Code, which criminalizes same-

sex sexual relations.

14.

The source reports that the police charged the individuals under this provision

although they did not witness anyone engaging in sexual relations at the time of the raid and

arrests. Local media footage of the raid recorded neighbours of the shelter and leaders of the

area stating that they were worried about the “homosexual behaviour” of the young people

in the shelter. The footage also reportedly showed the Mayor of Nsangi whipping and

verbally lashing out at two of the shelter residents while forcing them to admit that they were

homosexual.

15.

It is also reported that, after the arrests, a search of the shelter was conducted in order

to find “evidence of homosexuality”. Some of the items recovered and kept as evidence

included several bottles of an antiretroviral drug regimen commonly used as a pre-exposure

prophylaxis, two oral HIV self-testing kits and several condoms.

16.

The source further explains that while, following their arraignment before the Chief

Magistrate at Mpigi on 31 March 2020, the charge against the 19 individuals of “disobedience

of a lawful order” contrary to section of 117 of the Penal Code was dropped, the individuals

were remanded to Kitalya prison until 28 or 29 April 2020.

17.

The Uganda Prisons Service reportedly denied the 19 individuals access to their

lawyers. The lawyers then challenged the legality of that denial in the High Court, which

granted a certificate of urgency in the matter. The lawyers also filed a bail application before

the Chief Magistrate Court of Mpigi at Nsangi, however no date was set for the hearing.

18.

The source adds that a hearing scheduled for 28 April 2020 did not take place. The 19

individuals were not brought to court for the hearing and neither the magistrate nor the

prosecutor appeared. If found guilty under section 171 of the Penal Code, the individuals

could face up to seven years in prison.

c.

Legal analysis

19.

The source claims that the detention of the 19 individuals constitutes an arbitrary

deprivation of their liberty under categories I, III and V as set forth by the Working Group.

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i.

Category I

20.

The source first claims that the detention of the 19 individuals is arbitrary under

category I, as the charges against them are without merit and cannot be used as a lawful basis

to justify their continued detention.

21.

It is reported that the 19 individuals were charged with engaging in “negligent acts

likely to spread infection of disease” in violation of section 171 of the Penal Code. The source

argues that the specific application of these charges against all 19 individuals cannot justify

their pretrial detention because the acts proscribed in the statute cannot be attributed to their

actions and their detention thus lacks sufficient legal basis.

22.

The source reiterates that the police claimed that all 19 individuals had violated

section 171 of the Penal Code by gathering in a school-like dormitory setting within a small

house, clearly disobeying pandemic-related directives on social distancing, in particular the

ban on gatherings of more than 10 people. The source submits that these charges cannot be

attributed to the individuals because, contrary to the police’s claims, they were in compliance

with the restrictions established by the President ordering people, with the exception of cargo

transporters, to stay inside their homes. The source argues that the individuals were actually

in compliance with the directive at the time of their arrest. Although the President’s directive

set limits on the number of people allowed for a gathering, it did not establish limits on the

number of individuals permitted in a private home or shelter.

23.

Therefore, the source considers that the authorities are attempting to criminalize the

individuals’ lawful presence in their private dwelling. Given that the 19 individuals were in

compliance with the President’s directives, they cannot be found to be in violation of section

171 of the Penal Code. Therefore, there is no legal basis for their detention under the cited

provision and their continued detention under section 171 of the Penal Code is arbitrary under

Category I.

ii.

Category III

24.

The source reports that the 19 individuals have been denied access to their lawyers

since their arrest. Owing to the COVID-19 restrictions on movement, all travel by private car

and public transport, except by persons performing essential services, is banned. When the

lawyers of the 19 individuals filed an application with the Ministry of Works and Transport

to visit their clients, it was rejected. The rejection effectively denied the individuals the right

to communicate with their lawyers as required under international human rights law,

specifically pursuant to article 14 (3) (b) and (d) of the International Covenant on Civil and

Political Rights. The right to counsel is also guaranteed under section 28 (3) (d) of the

Constitution, which provides that every person who is charged with a criminal offence must

“be permitted to appear before the court in person or, at that person’s own expense, [be

represented] by a lawyer of his or her choice”.

25.

The source adds that the Uganda Prisons Service also officially denied the 19

individuals access to their lawyers. The lawyers then challenged the legality of that denial of

access in the High Court, which granted a certificate of urgency in the matter. The lawyers

also filed a bail application before the Chief Magistrate Court of Mpigi at Nsangi, however

no date was set for the hearing. Finally, on 12 May 2020, the High Court ordered that the

lawyers be granted reasonable access to the 19 individuals.

26.

Moreover, the source claims that the 19 individuals were forced to appear before a

magistrate the day after their arrest without their legal counsel present, in violation of

international human rights law and the Constitution. Uganda has thus violated the individuals’

right to counsel, an element of the right to a fair trial.

27.

Therefore, the source considers that the detention of the 19 individuals has failed to

meet the minimum standards of due process under both international law and the Constitution

and is therefore arbitrary under category III.

iii.

Category V

28.

According to the source, the detention of the 19 individuals is due to their sexual

orientation and/or gender identity and is therefore arbitrary under category V.

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29.

In that regard, the source argues that although both international and Ugandan law

(specifically article 26 of the Covenant and article 21 of the Constitution) guarantee freedom

from discrimination and equal protection under the law, the Government arbitrarily arrested

and detained the 19 individuals because of their real or perceived sexual orientation and

gender identity.

30.

The source reiterates that in the initial statement following the arrests, the police

claimed that they had raided the shelter and subsequently arrested the individuals for

violating the COVID-19 restrictions and therefore had intended to charge them with violating

sections 171 and 117 of the Penal Code. However, reports later revealed that the police had

initially charged the individuals with engaging in “carnal knowledge”, in violation of section

145 of the Penal Code. The source specifies that the police charged the individuals under

section 145 even though they did not witness anyone engaging in sexual relations at the time

of the raid and arrests. Local media footage of the raid recorded neighbours of the shelter and

leaders of the area stating that they were worried about the “homosexual behaviour” of the

young people in the shelter. The footage also showed a mayor whipping and verbally lashing

out at two of the shelter residents while forcing them to admit that they were homosexuals.

31.

It is also reported that, after the arrests, a search of the shelter was conducted in order

to find “evidence of homosexuality”. Some of the items recovered and kept as evidence

included several bottles of an antiretroviral drug regimen commonly used as pre-exposure

prophylaxis, two oral HIV self-testing kits and several condoms.

32.

In the source’s view, the facts demonstrate that the Ugandan authorities are using

measures aimed at containing the spread of COVID-19 to further marginalize and target

already vulnerable populations, in particular lesbian, gay, bisexual and transgender persons.

33.

Moreover, the source states that the authorities have offered no reasonable or

legitimate purpose for the differential treatment of the 19 individuals currently detained.

Since the implementation of COVID-19 prevention measures, there have been no reports of

raids on other shelters, private homes or businesses similar to that of the raid on the Children

of the Sun Foundation shelter. The source submits that the 19 individuals were arrested under

the guise of enforcement of COVID-19 prevention measures, even though they were

complying with the President’s directives. This demonstrates that the arrests serve no

legitimate or objective purpose, but are rather a pretext for targeting and detaining lesbian,

gay, bisexual and transgender persons based on their real or perceived sexual orientation and

gender identity and for further restricting the rights and freedoms that are to be enjoyed by

all individuals in Uganda, irrespective of sexual orientation or gender identity. In this regard,

the source recalls that the Working Group has repeatedly emphasized that deprivation of

liberty on the basis of sexual orientation and gender identity is arbitrary and prohibited under

international law.2

34.

Therefore, the source argues that the authorities’ discriminatory actions are in direct

contradiction with international law. In continuing to deprive the 19 individuals of their

liberty under baseless charges, solely because of their sexual orientation and gender identity,

the actions of the Government are discriminatory and in violation of the equal protection

guarantees under article 26 of the Covenant and article 7 of the Universal Declaration of

Human Rights. As a result, the source considers that the detention of the 19 individuals is

arbitrary under category V.

Response from the Government

35.

On 30 December 2020, the Working Group transmitted the allegations from the source

to the Government through its regular communications procedure. The Working Group

requested the Government to provide, by 1 March 2021, detailed information about the

current situation of the 19 individuals and any comments on the source’s allegations. The

Government responded to the communication on 18 February 2021. In its response, the

Government gave the background and circumstances regarding the arrest of the 19

2 See, for example, opinion No. 14/2017.

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individuals, stressing the measures it had taken to mitigate the impact of the COVD-19

pandemic, including the development of guidelines and standard operating procedures.

36.

The Government describes as baseless, unfounded and unacceptable the allegations

from the source suggesting that the Government was targeting lesbian, gay, bisexual and

transgender persons for discrimination and persecution on the grounds of their sexual

orientation. It asserts that, to the contrary, all people in Uganda are treated equally under the

law, which is non-discriminatory.

37.

On 18 March 2020, the Government announced a series of measures under the

standard operating procedures designed to curb the spread of COVID-19. The measures were

non-discriminatory and applied to all segments of society. The arrest of the 19 individuals

was a result of the violation of the COVID-19 rules as covered by the standard operating

procedures. In defiance of those procedures, the individuals had converged in a rented

dormitory in the town of Nkokonjeru. This had raised the concern of members of the local

community, who informed the police. The police, in carrying out its mandate to enforce the

public health (COVID-19) guidelines, raided the dormitory and arrested the 19 individuals

for conduct likely to spread a dangerous disease contrary to the laws of Uganda. The

Government denied the source’s allegation that the individuals were arrested at a shelter for

lesbian, gay, bisexual and transgender persons, as there are no such shelters in Uganda.

38.

The Government further states that following their arrest, the 19 individuals were

arraigned before the Chief Magistrate Court in Nsangi and charged with the offence of

committing neglectful acts likely to spread infection of a disease contrary to section 171 of

the Penal Code. They were remanded to Kitalya prison on 31 March 2020. The individuals

were released on 19 May 2020, when the charges against them were dropped following a

directive from the Government to reduce the number of people in prisons in the context of

the pandemic.

39.

The Government clarifies that, contrary to the assertion by the source, the 19

individuals were not charged under section 145 of the Penal Code in relation to their sexual

orientation.

40.

The Government also explains that the 19 individuals were admitted into prison wards

together with other inmates in accordance with legal guidelines. However, within two weeks

of their incarceration, complaints emerged from other inmates regarding the sexual practices

of the 19 individuals. The prison authorities investigated the concerns and established that

the 19 individuals were engaging in same-sex sexual acts, in violation of the prison rules.

Those individuals were then separated in different wards in an effort to stop them from

engaging in the illegal acts, and the individuals confirmed to have been engaged in the acts

were warned against continuing those activities.

41.

The Government denies the allegation from the source that the 19 individuals were

denied access to legal representation, stating that on 8 May 2020 their legal representatives

in fact wrote to the Director of Public Prosecutions asking for a review of the charges against

them. On 15 May 2020, two lawyers from the non-governmental organization Human Rights

Awareness and Promotion Forum visited Kitalya prison with a letter granting them

permission to have access to the inmates to provide them with legal aid. The prison authorities

welcomed the lawyers and accorded them space to meet with their clients. No complaint was

raised by the lawyers regarding any denial of access to their clients.

42.

The Government dismisses as baseless and unfounded the allegation that the 19

individuals were tortured. It states that neither the individuals nor their lawyers raised any

complaint of torture between the time of the detention and the release of the individuals.

43.

In closing, the Government states that it is fully aware of its obligations with regard

to the promotion and protection of human rights and that its commitment to the promotion of

human rights draws from its experience and history, which it believes is important for the

country and its people. Measures it has taken to promote the observance of human rights in

Uganda, include the establishment of the Uganda Human Rights Commission and the

integration of a human rights approach in all its development plans. It denies any suggestion

that lesbian, gay, bisexual and transgender persons are subjected to discrimination.

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Additional comments from the source

44.

On 19 February 2021, the Working Group requested the source to provide comments

on the Government’s response. The source provided comments in a communication

addressed to the Working Group.

45.

The source claims that the Government failed to provide any evidence or argument to

rebut the allegations; wilfully ignored certain material aspects of the source’s submission;

and directly admitted to violating the rights of the 19 individuals based on their real or

perceived sexual orientation and gender identity.

46.

The source maintains that the detention of these 19 individuals constitutes arbitrary

detention of their liberty under categories I, III and V for the reasons presented in its petition.

In short, the detention was arbitrary under category I because it was not founded on any legal

justification; under category III, because it failed to meet minimum international standards

of due process; and under category V, because the Government targeted the individuals on

the basis of their real or perceived sexual orientation and gender identity.

47.

According to the source, it had demonstrated in its petition how the Mayor of

Kyengera, Hajji Abdul Kiyimba, and officers of the Uganda Police Force had raided a shelter

for lesbian, gay, bisexual and transgender persons run by the Children of the Sun Foundation

on 29 March 2020. During the raid, the officers violently arrested a number of people,

including the 19 individuals, under a thinly veiled guise of upholding COVID-19 prevention

measures. The government agents targeted a shelter known for being a space for lesbian, gay,

bisexual and transgender persons, and arbitrarily arrested and subsequently detained the 19

individuals because of their real or perceived sexual orientation and gender identity.

48.

The source maintains that the arrest and continued detention of the 19 individuals

described above is an egregious violation by the Government of the following rights under

various provisions of the Constitution and international law: the right to be free from arbitrary

detention; the right to due process; and the right to equal protection under the law and

freedom from discrimination.

49.

The source notes that after multiple failed attempts at gaining access to the 19

individuals in order to provide legal representation, Human Rights Awareness and Promotion

Forum lawyers commenced proceedings before the High Court against the Attorney General

of Uganda and the Commissioner General of Prisons to enforce the constitutional right of the

individuals to due process and a fair trial. The suit was filed on 24 April 2020 and the High

Court issued a ruling on 12 May 2020 granting the lawyers access. Three lawyers were able

to gain access to the individuals on 15 May 2020. The Director of Public Prosecutions

formally withdrew the charges against the 19 individuals. Following this, the Magistrate

Grade I of the Chief Magistrate Court of Mpigi at Nsangi ordered the release of the 19

individuals. They were released on 19 May 2020. On 5 June 2020, the High Court entered a

judgment in favour of Human Rights Awareness and Promotion Forum in the main civil suit,

holding, in part, that the Government had violated the rights of the 19 individuals to a fair

trial and to liberty guaranteed under the Constitution, among others, when it denied them

access to their lawyers. Each of the 19 individuals was awarded 5 million Uganda shillings

as compensation. The funds have yet to be paid out by the State.

50.

The Attorney General later applied to set aside the decision, arguing that the State had

not been given an opportunity to be heard during the hearing of the application, as the State

had been prevented by COVID-19 transport restrictions from being represented. The court

dismissed this application on 21 December 2020, thus the ruling and the award of

compensation remain valid.

51.

The source also informs the Working Group that following the release of the 19

individuals, Human Rights Awareness and Promotion Forum lawyers commenced a lawsuit

against the Ugandan authorities over the systematic torture of the individuals during their

detention at the Kitalya prison and the Nkokonjeru police post. The 19 individuals endured

taunting, flogging, an anal examination in one case, scalding, and denial of access to food,

sanitary facilities and medication, among other things. The case has come up for hearing

twice before the High Court, and was scheduled to come up again on 9 March 2021. The

source further informs the Working Group that Human Rights Awareness and Promotion

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Forum also filed a criminal case under the Prevention and Prohibition of Torture Act at the

Chief Magistrate Court of Wakiso against the Mayor of Kyengera, Hajji Abdul Kiyimba, and

a prisons officer, Principal Officer Philimon Woniala, for their roles in the torture of the 19

individuals. The case was dismissed by the Court on 19 January 2021.

52.

The source asserts that, by virtue of its response, the Government argues that the

above-mentioned laws and COVID-19 directive empowered the Government and officers of

the Uganda Police Force to forcibly raid the Children of the Sun Foundation shelter. However,

the Government wilfully fails to identify specific provisions of the laws and the directive that

empowered its actions on 29 March 2020. The source submits that no interpretation of the

provisions of these laws and directive provide the Government with the authority to raid,

arrest and detain individuals who are at a place they call home.

53.

The source submits that the Penal Code criminalizes unlawful and negligent acts that

are likely to spread the infection of any disease, but does not empower the police to raid a

private home as part of an enforcement measure without a determination that there is indeed

a likelihood of a spread of the infection of a disease. The Public Health Act provides for the

power of the police officers to inspect premises but only when “generally or specially

authorised in writing by the chief medical officer, medical officer of health or local authority”.

This provision does not empower the police to raid premises without authorization, and arrest

people and detain them, as was the case with the 19 individuals. Similarly, the directive

referenced in the Government’s response empowers medical officials or other persons to

enter premises “on the written instruction of a medical officer”.3 Rule 2 (1) (e) of the amended

directive provided that public meetings, including political rallies, conferences and cultural

related meetings were banned until 19 May 2020.4 The directive contains no provision for

invasive raids, arrests or detentions.

54.

The Government’s response, according to the source, provided no evidence or

argument to suggest that the 19 individuals or the shelter hosted or planned to host a public

meeting as described by the rule. The source reiterates its argument that the Government’s

directive required all Ugandans, save for essential workers, to stay at home. The directive did

not establish limits on the number of individuals permitted in a private home or shelter.

Therefore, the 19 individuals were in compliance with the directive having been at home at

the time of the raid and at all times relevant to this case.

55.

A careful examination of the relevant provisions of the above-mentioned laws and

directive show that the Government, not the 19 individuals, breached the laws when it raided

the home of the individuals and arrested and detained them, all without authorization. First,

the law only permits the inspection of clearly identified premises and not raids of homes or

the arrest of persons in their home. Second, there is no suggestion in the response of the

Government that the police had written authorization to inspect the shelter as prescribed by

the law. The Government could not have had written authorization for the raid or the arrest

and detention of the 19 individuals, as that would be ultra vires. Third, the conduct of the

Government during the raid and arrest as described by the source does not support the claim

that the raid was a COVID-19 enforcement measure.

56.

The government agents did not wear personal protective equipment and there were no

medical officers in their company. In addition, according to the Government’s response, after

their arrest, the 19 individuals were admitted into prison wards together with other inmates

in breach of the COVID-19 protocols – no tests were conducted, and there was no screening

or quarantine. In any case, after months of delay and unnecessary adjournments, the

Government withdrew the charges against the 19 individuals without adducing any evidence

to substantiate its case.

57.

The source argues that the actions of the Government were illegal and carried out with

prejudice. In the absence of a legal basis for the raid and the arrest and lengthy detention of

law-abiding citizens who were in full compliance with the Government’s stay-at-home

directive, the defence of the Government fails. The Working Group must discountenance the

3 Uganda, The Public Health (Control of COVID-19) Rules, 2020, 24 March 2020, sect. 6 (1).

4 Uganda, The Public Health (Control of COVID-19) (Amendment No. 2) Rules, 2020, 8 May 2020.

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Government’s flawed argument and hold that the detention of the 19 individuals was arbitrary

under category I.

58.

The source further submits that the Government’s response in fact supports the

allegation that the right of the 19 individuals to due process was violated. The Government

agrees that the individuals did not have access to their lawyers or any form of legal

representation for most of their time in detention, contrary to international law and the

Constitution. The Government states that the individuals were charged, and were remanded

to Kitalya prison on 31 March 2020. The Government further states that on 15 May 2020,

two lawyers from Human Rights Awareness and Promotion Forum visited Kitalya prison

with a letter granting them permission to have access to the inmates to provide them with

legal aid, and that the prison authorities welcomed the lawyers and accorded space to hold

the meeting with their clients. The Government thus confirms that the first time the

individuals had access to their lawyers or any legal representation was on 15 May 2020 – 47

days after their arrest. The Government did not provide any justification for this gross

violation of the due process rights, because none exists.

59.

After the 19 individuals were forced to appear before a magistrate, on 31 March 2020,

without their legal counsel present, the lawyers at Human Rights Awareness and Promotion

Forum made efforts to gain access and provide legal support to their clients without success.

Subsequently, the lawyers filed an application with the Ministry of Works and Transport (the

agency in charge of issuing permits for movements during the COVID-19 lockdown) to visit

their clients but it was rejected, effectively denying all 19 individuals the right to

communicate with their lawyers. The final administrative efforts of the lawyers failed when

the Uganda Prisons Service officially denied the lawyers’ application for access to the 19

individuals.

60.

The lawyers challenged the Government’s denial of access to the 19 individuals before

the High Court and obtained an order declaring the action of the Government unconstitutional

and compelling the Government to grant the lawyers access. The Government granted the

lawyers access to the individuals only following the order of the High Court. This implies

that but for the court order, the Government would have sustained the violation of the 19

individuals’ rights to due process and fair trial ad infinitum. By preventing the individuals

from gaining access to their lawyers or any other lawyer, the Government violated their right

to counsel, an element of the right to a fair trial. Therefore, the detention failed to meet the

minimum standards of due process under both international law and the Constitution. The

Working Group must therefore find that the detention of the 19 individuals was arbitrary

under category III.

61.

As regards the Government’s response that the detention of the 19 individuals was not

due to their sexual orientation and/or gender identity, the source states that the Government

supports the source’s argument that the Government arrested and detained the individuals

because of their real or perceived sexual orientation and/or gender identity. The source

reiterates that reports revealed that the police initially charged 23 individuals with engaging

in “carnal knowledge” in violation of section 145 of the Penal Code, which criminalizes

same-sex sexual relations.

62.

The source notes that the Government claims that the prison authorities received

complaints from other inmates regarding the 19 individuals’ sexual practices and that

investigations confirmed that some of the individuals were breaching prison rules by

engaging in same-sex sexual acts. Although only some of the individuals allegedly breached

the prison rules, the Government states that it punished all 19 individuals by separating them

into different wards – a clear act of discrimination. Furthermore, the Government offers no

reasonable or legitimate purpose for targeting and raiding a shelter known to house lesbian,

gay, bisexual and transgender Ugandans during a government-imposed lockdown. The

discriminatory actions of the authorities are in direct contradiction with international law and

the opinions expressed by the Working Group. In depriving the 19 individuals of their liberty

under baseless charges, solely because of their sexual orientation and gender identity, the

actions of the Government were discriminatory and in violation of the equal protection

guarantees under article 26 of the Covenant and article 7 of the Universal Declaration of

Human Rights. As a result, their detention was arbitrary under category V.

A/HRC/WGAD/2021/20

10

Discussion

63.

The Working Group thanks the source and the Government for their submissions.

64.

In determining whether a person’s detention was arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international law constituting arbitrary

detention, the burden of proof should be understood to rest upon the Government if it wishes

to refute the allegations. Mere assertions by the Government that lawful procedures have

been followed are not sufficient to rebut the source’s allegations.5 In the present case, the

Government of Uganda did, through its response, challenge the prima facie allegations made

by the source.

65.

As a preliminary observation, the Working Group takes note that 19 individuals were

released from custody following the dropping of all of the charges against them. However,

given that they were allegedly subjected to serious human rights violations, the Working

Group considers that it is important to render its opinion, as it has done previously in similar

situations.6

66.

It now remains for the Working Group to assess the two conflicting versions so as to

ascertain whether the detention of the 19 individuals was arbitrary under category I, category

III and/or category V, as argued by the source. The Working Group shall proceed to examine

the allegations in turn.

Category I

67.

The Working Group notes the submission by the source that on 29 March 2020, the

authorities raided a shelter in Kyengera housing lesbian, gay, bisexual and transgender

persons. A total of 23 individuals, including the 19 individuals who are the subjects of the

present case, were arrested during the raid. The source states that the arrest was carried out

without a warrant. Of the 23 persons arrested, 13 were residents of the shelter. Five of those

who were not residents of the shelter were visiting from another shelter, one was a guest of

one of the residents and one was a resident nurse. The source claims that the police targeted

this shelter and arbitrarily arrested the individuals because of their real or perceived sexual

orientation and gender identity.

68.

There are conflicting statements as to the reasons of the arrest, with the initial police

statement stating that the 19 individuals were arrested for violating the COVID-19

restrictions. According to the source, later reports revealed that the police had charged the

individuals with engaging in “carnal knowledge”, in violation of section 145 of the Penal

Code, which criminalizes same-sex sexual relations.

69.

In its response, the Government acknowledged the raid and the arrests of the 19

individuals and stated that the arrests were made pursuant to the established law and COVID-

19 rules designed to prevent the spread of the pandemic, but did not speak specifically to the

question of whether the arrests were made pursuant to an arrest warrant, nor did it state

whether some of the persons arrested in the raid were resident at the shelter in question. The

Government stated that the individuals involved had been arrested for allegedly engaging in

“negligent acts likely to spread infection of disease” in violation of section 171 of the Penal

Code and “disobedience of a lawful order”, under section 117 of the Penal Code.

70.

On the basis of the different positions submitted, the Working Group finds that no

arrest warrants were presented at the time of the arrest of the 19 individuals. It recalls that

the burden is on the Government to rebut any allegation of impropriety that may bring an

arrest or detention into conflict with international human rights law. That burden has not been

discharged.

71.

As the Working Group has repeatedly stated, in order for a deprivation of liberty to

have a legal basis, it is not sufficient for there to be a national law authorizing the arrest.

Rather, the authorities must invoke a legal basis consistent with international human rights

5 A/HRC/19/57, para. 68.

6 See, for example, opinion No. 36/2020, para. 47.

A/HRC/WGAD/2021/20

11

standards and apply it to the circumstances of the case. This does not appear to have been the

case in the situation involving the 19 individuals.7

72.

International human rights law includes the right to be presented with an arrest warrant

to ensure the exercise of effective control by a competent, independent and impartial judicial

authority, which is procedurally inherent in the right to liberty and security and the

prohibition of arbitrary deprivation under articles 3 and 9 of the Universal Declaration of

Human Rights, article 9 (1) of the International Covenant on Civil and Political Rights and

principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment.8 The Working Group reiterates that any deprivation of

liberty without a valid arrest warrant, as in the present case, is therefore a breach of article 9

(1) of the Covenant.

73.

The 19 individuals remained in remand at Kitalya prison in pretrial detention for 29

or 30 days. The Working Group recalls that in accordance with article 9 (3) of the Covenant,

pretrial detention should be the exception rather than the norm, and should be ordered for the

shortest time possible.9 In other words, liberty is acknowledged under article 9 (3) of the

Covenant as the core consideration, with detention merely as an exception. Detention pending

trial must thus be based on an individualized determination that it is reasonable and necessary

for such purposes as to prevent flight, interference with evidence or the recurrence of crime.10

In regard to the 19 individuals who spent four weeks at Kitalya prison, the Working Group

finds that the Government violated article 9 (3) of the Covenant, articles 3 and 9 of the

Universal Declaration of Human Rights, and principles 11, 37 and 38 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

74.

Furthermore, the Working Group recalls that access to a lawyer from the outset of

detention is an essential safeguard to enable the detainee to challenge the legal basis for the

detention.11 The Working Group considers that the 19 individuals were not able to challenge

their detention under article 9 (4) of the Covenant and articles 9, 10 and 11 of the Universal

Declaration of Human Rights, as they did not have access to a lawyer when they appeared

before the magistrate. Given that the 19 individuals were not able to challenge their detention,

their right to an effective remedy under article 2 of the Covenant and article 8 of the Universal

Declaration of Human Rights was also violated.

75.

The Working Group thus concludes that the detention of the 19 individuals lacked a

legal basis and was therefore arbitrary and falls under category I.

7 See, for example, opinions No. 93/2017, para. 44; No. 10/2018, paras. 45–46; No. 36/2018, para. 40;

No. 46/2018, para. 48; No. 9/2019, para. 29; No. 32/2019, para. 29; No. 33/2019, para. 48; No.

44/2019, para. 52; No. 45/2019, para. 51; No. 46/2019, para. 51; No. 65/2019, para. 59; No. 71/2019,

para. 70; No. 72/2019, para. 40; No. 82/2019, para. 74; No. 6/2020, para. 39; No. 11/2020, para. 37;

No. 13/2020, para. 46; No. 14/2020, para. 49; No. 31/2020, para. 40; No. 32/2020, para. 32; No.

33/2020, paras. 53 and 71; and No. 34/2020, para. 45.

8 The Working Group has maintained from its early years that the practice of arresting persons without

a warrant renders their detention arbitrary. See, for example, decisions No. 1/1993, paras. 6–7; No.

3/1993, paras. 6–7; No. 4/1993, para. 6; No. 5/1993, paras. 6 and 8–9; No. 27/1993, para. 6; No.

30/1993, paras. 14 and 17 (a); No. 36/1993, para. 8; No. 43/1993, para. 6; and No. 44/1993, paras. 6–

7. For more recent jurisprudence, see opinions No. 38/2013, para. 23; No. 48/2016, para. 48; No.

21/2017, para. 46; No. 63/2017, para. 66; No. 76/2017, para. 55; No. 83/2017, para. 65; No. 88/2017,

para. 27; No. 93/2017, para. 44; No. 3/2018, para. 43; No. 10/2018, para. 46; No. 26/2018, para. 54;

No. 30/2018, para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80; No.

63/2018, para. 27; No. 68/2018, para. 39; No. 82/2018, para. 29; No. 6/2020, para. 40; No. 11/2020,

para. 38; No. 13/2020, para. 47; No. 14/2020, para. 50; No. 31/2020, para. 41; No. 32/2020, para. 33;

No. 33/2020, para. 54; and No. 34/2020, para. 46.

9 A/HRC/19/57, paras. 48–58.

10 Human Rights Committee, general comment No. 35 (2014), para. 38.

11 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 9

and guideline 8.

A/HRC/WGAD/2021/20

12

Category III

76.

To support the claim that the detention of the 19 individuals constituted arbitrary

detention under category III, the source reports that the individuals were denied access to

their lawyers until a court ruling granted such access. When the lawyers of the individuals

filed an application with the Ministry of Works and Transport to visit their clients it was

rejected, thus effectively denying the individuals the right to communicate with their lawyers

as required under international human rights law, specifically pursuant to article 14 (3) (b)

and (d) of the Covenant. The right to counsel is also guaranteed under section 28 (3) (d) of

the Constitution, providing that every person who is charged with a criminal offence must

“be permitted to appear before the court in person or, at that person’s own expense, [be

represented] by a lawyer of his or her choice”.

77.

The source claims that the 19 individuals were forced to appear before a magistrate

the day after their arrest without their legal counsel being present, in violation of international

human rights law and the Constitution, more specifically their right to counsel, an element of

the right to a fair trial. This, according to the source, made the detention of the individuals

arbitrary under category III.

78.

The source alleges that the Uganda Prisons Service reportedly denied the 19

individuals access to their lawyers. The lawyers challenged the legality of the denial of access

to lawyers in the High Court, which issued a ruling on 12 May 2020 granting the lawyers

access. Three lawyers were able to gain access to the individuals on 15 May 2020.

79.

In its response, the Government rejects the allegation from the source that the 19

individuals were denied access to legal representation, stating that on 8 May 2020 the legal

representatives of the individuals in fact wrote to the Director of Public Prosecutions asking

for a review of the charges against the individuals. On 15 May 2020, two lawyers from

Human Rights Awareness and Promotion Forum visited Kitalya prison with a letter granting

them permission to have access to the inmates to provide them with legal aid. The prison

authorities welcomed the lawyers and accorded them space to meet with their clients. No

complaint was raised by the lawyers regarding any denial of access to their clients.

80.

The Working Group is not in any doubt that, based on the evidence presented, the 19

individuals were denied access to their lawyers until the court ruled otherwise.

81.

In the Working Group’s view, the Government failed to respect the 19 individuals’

right to legal assistance at all times. The Working Group emphasizes that legal assistance

should be available at all stages of criminal proceedings, namely, during the pretrial, trial, re-

trial and appellate stages, to ensure compliance with fair trial guarantees. Any denial of access

to lawyers is thus a breach of article 14 (3) (b) of the Covenant.

82.

The Working Group considers that this violation substantially undermined and

compromised the capacity of the 19 individuals to defend themselves in any subsequent

judicial proceedings. As the Working Group has stated, persons deprived of their liberty have

the right to legal assistance by counsel of their choice, at any time during their detention,

including immediately after the moment of apprehension, and must be promptly informed of

this right upon apprehension. Access to legal counsel should not be unlawfully or

unreasonably restricted.12

83.

The Working Group has already found that the Government denied the 19 individuals

access to their lawyers until the High Court directed it to recognize their right to legal

representation. The Working Group has also stated that denial of legal representation

constituted a violation of the core right to a fair trial. The Government did not address the

aspect of the individuals appearing without counsel a day after their arrest. The initial

appearance of the individuals before a court in the absence of their lawyers violated their

right under article 14 (3) (d) of the Covenant.

84.

For the reasons given in the foregoing paragraphs, the Working Group concludes that

the violations of the right to a fair trial were of such gravity as to give the detention of the 19

individuals an arbitrary character under category III.

12 Ibid., principle 9 and guideline 8.

A/HRC/WGAD/2021/20

13

Category V

85.

The source reports that in its initial statement following the arrests, the police claimed

that it had raided the shelter and subsequently arrested the individuals for violating the

COVID-19 restrictions and therefore intended to charge them with violating sections 117 and

171 of the Penal Code. However, reports later revealed that the police initially charged the

individuals with engaging in “carnal knowledge”, in violation of section 145 of the Penal

Code, which criminalizes same-sex sexual relations. The source specifies that the police

charged the individuals under this provision even though the police did not witness anyone

engaging in sexual relations at the time of the raid and arrests. Local media footage of the

raid recorded neighbours of the shelter and local leaders stating that they were worried about

the “homosexual behaviour” of the young people in the shelter. The footage also showed a

mayor whipping and verbally lashing out at two of the shelter residents while forcing them

to admit that they were homosexual.

86.

It is also reported that, after the arrests, a search was reportedly conducted at the

shelter in order to find “evidence of homosexuality”. Some of the items recovered and kept

as evidence included several bottles of an antiretroviral drug regimen commonly used as a

pre-exposure prophylaxis, two oral HIV self-testing kits and several condoms. The

Government did not in its response specifically respond to those allegations.

87.

In the source’s view, these facts demonstrate that the Ugandan authorities are using

measures aimed at containing the spread of COVID-19 to further marginalize and target

already vulnerable populations, in particular lesbian, gay, bisexual and transgender persons.

The Government denies using the COVID-19 measures to further any other agenda, let alone

to marginalize or discriminate against any segment of society.

88.

Moreover, the source states that the authorities offered no reasonable or legitimate

purpose for the differential treatment of the 19 individuals currently detained. Since the

implementation of COVID-19 prevention measures, there have been no reports of raids on

shelters, private homes or businesses similar to that of the raid on the Children of the Sun

Foundation shelter. The source submits that the individuals were arrested under the guise of

enforcement of COVID-19 prevention measures, even though they were complying with the

President’s directives. This demonstrates to the source that the arrests serve no legitimate or

objective purpose, but are rather a pretext for targeting and detaining lesbian, gay, bisexual

and transgender persons based on their real or perceived sexual orientation and gender

identity and for further restricting the rights and freedoms that are to be enjoyed by all

individuals in Uganda, irrespective of sexual orientation or gender identity. In this regard,

the source recalls that the Working Group has repeatedly emphasized that deprivation of

liberty on the basis of sexual orientation and gender identity is arbitrary and prohibited under

international law.13

89.

Therefore, the source argues that the authorities’ discriminatory actions are in direct

contradiction with international law. In continuing to deprive the 19 individuals of their

liberty under baseless charges, solely because of their sexual orientation and gender identity,

the actions of the Government are discriminatory and in violation of the equal protection

guarantees under article 26 of the Covenant and article 7 of the Universal Declaration of

Human Rights. As a result, the source considers that the detention of the 19 individuals is

arbitrary under category V. The Government maintains that all measures taken were within

the regulations intended to curb the spread of COVID-19 and were applied equally across all

people of Uganda, and that the 19 individuals merely had circumstantially found themselves

in a situation that put them in conflict with the COVID-19 rules.

90.

From the facts as presented by the source and as responded to by the Government, the

Working Group finds that the perceived sexual orientation of the 19 individuals was a

motivating factor in the arrest and treatment of those individuals, as evidenced not only by

the change of the charges against the individuals but also by the fact that police arrested both

those who actually resided in the shelter and could thus not have been in violation of the

COVID-19 measure, and those who were merely visiting. From the manner in which the

operation at the shelter was conducted, the Working Group discerns a discriminatory attitude

13 See, for example, opinion No. 14/2017.

A/HRC/WGAD/2021/20

14

with respect to those perceived to be lesbian, gay, bisexual and transgender and anyone

“associated” with them.

91.

The Working Group reiterates that emergency measures or powers enacted to address

public health emergencies must be exercised with respect to the principle of equality and

non-discrimination based on the grounds of birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability

or any other status.14 Such measures and powers must take into account the disparate impact

upon vulnerable groups who already experience disadvantage, including persons with

disabilities, older persons, minority communities, indigenous peoples, people of African

descent, internally displaced persons, persons affected by extreme poverty, homeless persons,

migrants and refugees, persons who use drugs, sex workers and lesbian, gay, bisexual,

transgender, intersex and gender-diverse persons, who may not have the same capacity to

comply with health directives (such as isolation at home, self-funded quarantine in hotels, or

requirements not to attend work or to pay fines or bail), and may be deprived of their liberty

as a result.15

92.

In view of the foregoing observations, the Working Group is of the view that the

detention of the 19 individuals also amounted to a violation under category V.

93.

The Working Group takes this opportunity to recall that deprivation of liberty on the

basis of sexual orientation is arbitrary and prohibited under international law.16

Disposition

94.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Douglas Tumuhimbise, Andrew Kibalama, Saddam

Kateregga, Raj Jjuuko, Kelvin Kugonza, Denis Ssamula, Abbey Gwanvu, Henry

Mukiibi, Kareem Yiga, Harris Tevin Kifuba, Jabel Tushabomwe, Ivan Kawooya,

Ashiraf Walugembe, Jackson Mayanja, James Tendibwa, Mark Muhereza, Joel

Oketch, Ronald Ssenyonga and Rodney Sheema, being in contravention of articles 2,

3, 7, 8, 9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 2

(1) and (3), 9, 14, 19 and 26 of the International Covenant on Civil and Political Rights,

was arbitrary and falls within categories I, III and V.

95.

The Working Group requests the Government of Uganda to take the steps necessary

to remedy the situation of the 19 individuals without delay and bring it into conformity with

the relevant international norms, including those set out in the Universal Declaration of

Human Rights and the International Covenant on Civil and Political Rights.

96.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord the 19 individuals an enforceable right to

compensation and other reparations, in accordance with international law.

97.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention and treatment of the

19 individuals and to take appropriate measures against those responsible for the violation of

their rights.

98.

The Working Group requests the Government to bring its laws into conformity with

the present opinion and with the commitments made by Uganda under international human

rights law.

99.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

this case to the Independent Expert on protection against violence and discrimination based

on sexual orientation and gender identity for appropriate action.

14 Deliberation No. 11 (A/HRC/45/16, annex II), para. 26.

15 Ibid., para. 27.

16 See, for example, opinions No. 7/2002, No. 22/2006, No. 42/2008, No. 25/2009 and No. 14/2017.

A/HRC/WGAD/2021/20

15

100.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

101.

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 compensation or other reparations have been made to the 19

individuals;

(b)

Whether an investigation has been conducted into the violation of the rights of

the 19 individuals and, if so, the outcome of the investigation;

(c)

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;

(d)

Whether any other action has been taken to implement the present opinion.

102.

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.

103.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of 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.

104.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has 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.17

[Adopted on 12 May 2021]

17 Human Rights Council resolution 42/22, paras. 3 and 7.