TRAINING OF MAGISTRATES ON HUMAN RIGHTS
APPROACH IN THE ADMINISTRATION OF JUSTICE
IN MAGISTRATES COURTS HELD ON 6TH MAY, 2021
AT KABIRA COUNTRY CLUB, KAMPALA
REPORT
Compiled by:
H/W Naigaga Winfred Kyobiika and Ms. Maureen Namono
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TRAINING REPORT OF MAGISTRATES ON HUMAN RIGHTS
APPROACH IN THE ADMINISTRATION OF JUSTICE IN
MAGISTRATE COURTS
1.0 INTRODUCTION
The Judicial Training Institute (JTI) is mandated under Section 19 of the
Administration of the Judiciary Act, 2020 to provide specialized and
continuous education to members of the Judiciary Service and any other
person or institution approved by the Executive Director of the JTI.
To this end, the JTI has over time conducted and continues to conduct
training activities, organize symposiums, conferences, workshops and
seminars that are intended to improve the capacity of Judicial Officers and
other staff in their respective roles in the Judiciary.
In line with the above mandate, the JTI funded by JLOS organized this
training on human rights approach in the administration of justice in
magistrates’ courts. The aim of the training was to introduce Magistrates to
Human Rights; expose them to the Highlights in the Human Rights
Enforcement Act and Regulations and the significance of the Human Rights
based approach in the dispensation of Justice.
Uganda has a comprehensive legal framework in place for protecting and
enforcing the human rights regime. However, the country has in the recent
past witnessed increased restrictions on rights such as rights to property;
freedom of expression; peaceful assembly; and association. The Media has
been awash with News of Security forces using excessive and unnecessary
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lethal force to enforce their legal mandate of defending and protecting the
sovereignty and territorial integrity of the country, and maintaining of law
and order.
National courts have an important role to play in safeguarding human rights
and holding those that violate the same accountable. However is suffice to
note that, courts are heavily dependent on many organs of the state such
as the police, to enforce their decisions. Additionally, though court have
continuously made several rulings which promise to protect human rights,
there are many judicial officers that lack adequate capacity to identify
human rights and address their violations in adjudication. It is no doubt that
Ugandans need an effective, accessible and affordable mechanism for fair
resolution of human rights violations. Given the complexity of this
challenge, it is important to strengthen courts by exposing judicial officers
to the practical realities of human rights and their violations.
2.0 OVERALL OBJECTIVE OF THE TRAINING
The overall theme of the workshop was to strengthen the judicial capacity
to strengthen the human rights based approach in the administration of
Justice.
3.0 SPECIFIC TRAINING OBJECTIVES
By the end of the course, the JTI hoped that the participants would be able
to:
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1. Identify human rights and freedoms under Chapter 4 of the 1995
Constitution of Uganda and their implications.
2. Appreciate the highlights of Human rights Enforcement Act, 2019 and
Regulations there under.
3. Identify key human rights challenges faced by Judicial Officers in
enforcement of human rights in the justice system.
4. Understand the significance of Human rights based approach in
dispensing justice.
5. Share best/good practices and remedies regarding the use of the
human rights approach.
6. Identify common trends and possible new reforms in enforcement of
the human rights regime.
4.0 TARGET AUDIENCE
The event targeted 20 Magistrates at different levels in the judiciary. These
will include:- Three Chief Magistrates and Seventeen Magistrates Grade
ones.
5.0. THE TRAINING PROGRAM
This was a one day training. It had 1 moderator and 3 facilitators. His
Worship Moses Gabriel Angualia (Deputy Registrar Training - JTI)
moderated the training. Dr. Diana Musoke, Hon. Justice Okalany Susan and
Ms. Patricia Nduru were the facilitators. Her Worship Naigaga Winfred
Kyobiika (Law reporting and Research Officer - JTI) was the training
rapporteur.
6.0 OPENING CEREMONY
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The training was commenced with the morning moderator, the Deputy
Registrar Training, His Worship Moses Gabriel Angualia welcoming
participants and appreciating them for honoring the invitation to attend the
training. He then took the participants through the programme.
6.1. Welcome Remarks
In his remarks, Musa Modoi, the advisor, human rights and accountability-
JLOS welcomed the participants and everyone present to the training. He
communicated that the Ms. Rachel Odoi-Musoke, the Senior Technical
Advisor - JLOS had a parallel engagement and thus could not grace the
occasion. He therefore was acting as a stand in. He stated that he was
honored to be port the capacity building event and expected that it will be a
success.
He stated that the training was one of JLOS interventions that is supposed
to deepen the observance of human rights across the 18 institutions.
He drew attention human rights challenges in instances such as land
grabbing, fraud in succession of estates, discrimination and marginalization
of the poor and vulnerable by those with power. He stated that the
Judiciary has a role to play in determining the relationship between
individuals and groups with valid claims and entitlement (Right holders) on
one hand, and State and non-state actors with corresponding obligations
(duty bearers) on the other hand. Additionally he stated that the judiciary
should work towards strengthening the capacities of right holders to make
their claims, and of the duty bearers to meet their obligations.
He stated that while the courts are carrying out the above role, they need
to adhere to accountability to ensure that policies, legislation, programmes,
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interventions and the administration of justice processes are responsible to
the needs of the rights holders.
He pledged that JLOS will continue to support the promotion of human
rights and the human rights based approach (HRBA) to public service
delivery in all its member institutions. He reminded participants that apart
from sponsoring such trainings, JLOS also supports full tuition scholarship
for 2 diplomas at the Law Development Centre such as a specialised
Diploma in human rights to JLOS institutional staff who including Judicial
officers.
He concluded his remarks by thanking -the leadership of JTI for organizing
the event, the facilitators for availing time to share knowledge and
perspectives, and the Judicial Officers for participating in the training.
6.2. Official Opening
In her speech, Hon Justice Damalie N. Lwanga, the Executive Director (ED)
welcomed the participants to the training and thanked them for honoring
JTI’s invitation.
She thanked JLOS for sponsoring the training and other continuous support
that has enabled JTI conduct several similar training activities in other areas
of the law.
She stated that the workshop was focused on the important subject of
human rights and Uganda had ratified both the International and Regional
human rights instruments. She went on to note that the human rights
regime had been had been operationalized in Uganda through Chapter 4 of
the Constitution and the recently enacted Human Rights Enforcement Act,
2019.
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She stated that the courts had a role to play in enforcing human rights
ranging from the observance of rights of the persons who appear before
courts to observance of the rules of natural justice in all matters and
adjudication of matters relating to human rights violations that come before
court. With that background, she noted that it was therefore important to
strengthen courts by exposing judicial officers to practical realities of human
rights related issues and to engage them on how to handle those matters.
She stated that her expectation was that the knowledge and skills that the
participants will acquire from the training will be used to enhance their
capacities as judicial officers to effectively handle issues relating to human
rights in their courts and to write well researched judgements.
She called upon the participants to pay attention to the presentations in the
workshop and to actively participate in the discussion for maximum benefit.
She also encouraged them to share the knowledge and skills from the
workshop with other Judicial Officers who were not present.
She concluded her remarks by applauding the facilitators for agreeing to
share their knowledge with the participants and thanked the JTI team for
organizing the workshop.
She ended by declaring the workshop open
7.0 HIGHLIGHT OF PRESENTATIONS
7.1. Introduction to Human Rights: Definition of the basic terms and concepts,
identifying the rights and freedoms in Chapter 4 of the Constitution
Dr Harriet Diana Musoke took the participants through this session.
She started her presentation by defining human rights as those rights and
freedoms that belong to every person from birth to death. She stated that
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they are based on; Dignity, fairness, equality, respect and independence.
She stated that human rights were important because they:
protect and preserve every individual,
ensure that every individual can live a life dignity,
Ensure that every individual can live a life worthy of a human being,
Enable an individual to speak up and to challenge poor treatment
from the public authority.
Ensure individuals have basic needs met by the responsible
authorities.
provide a universal standard that holds governments accountable.
She stated that human rights have principles that they are hinged and listed
these as: interrelated, interdependent, indivisible, universal, inalienable,
equality and non-discrimination. She added that human rights cover:- civil
and political rights, social rights, economic rights and cultural rights.
She defined the human rights based approach (HRBA) as a process of
empowering individuals to know their rights, exercise them, and ensure that
institutions and individuals responsible for respecting and protecting these
rights are held accountable. She listed the principles that applicable to the
HRBA as:- participation, accountability, non-discrimination and equality,
empowerment and legality.
She took the participants through some of the human rights listed in the
constitution such as: Right to life - Article 22, Right to personal liberty -
Article 23, Respect for human dignity and protection from inhuman
treatment Article 24, Protection from slavery, servitude and forced labour -
Article 25 and Protection from deprivation of property - Article 26.
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She discussed non - derogable rights such as: torture and cruel, inhuman or
degrading treatment or punishment; slavery or servitude; right to fair
hearing and the right to an order of habeas corpus – Article 44
She defined administration of justice as a process by which the legal system
of a government is implemented. She stated that the importance of
administration of justice was to: Protect the public from any harm or
violations of their human rights, provide rehabilitation services, ensure
equal justice for all through the justice system, ensure rule of law is
followed, ensure state policies and practice protect the human rights of the
individuals, ensure equality of individuals who use the legal system, ensure
fairness and transparency and the non-discrimination among the litigants
Dr Diana Musoke ended her sharing by taking the participants through the
role of a judicial officer in the enforcement of human rights. She stated that
among others, a judicial officer is supposed to: ensure access to justice for
all, promote the Rule of Law, ensure non-discrimination, observe the tenets
of equality and fairness, uphold the principle of impartiality in administering
justice and ensure a fair trial.
6.2 Highlights of the Human Rights Enforcement Act and Regulations
Hon Justice Suzan Okalany took the participants through this topic.
She started the presentation by giving the participants the background to
the Human Rights Enforcement Act. She stated that since the promulgation
of the constitution, there has been no law to address human rights
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enforcement by the Courts of law in Uganda. The long- accepted practise to
fill this lacuna has been that human rights violation matters were filed in the
High Court with unlimited jurisdiction over all civil and criminal matters. The
Civil Procedure Act & Rules, the Evidence Act and Criminal Procedure Code,
etc guided procedural matters in the enforcement of Human Rights. She
argued that in 2008, the Judiciary Rules Committee established under
Section 40 of the Judicature Act, issued the Judicature (Fundamental Rights
and Freedoms) (Enforcement Procedure) Rules S.I 55 of 2008, to provide
for the procedure to be followed in approaching courts for the enforcement
of human rights. She shared that however in 2011, the Constitutional Court
in the case of Bukenya Church Ambrose v Attorney General, nullified these
Rules on the basis that they were unconstitutional as their issuance
amounted to the usurping of the powers of Parliament. Se narrated that on
10th November 2015, the Human Rights Enforcement Bill No 26 of 2015
was tabled before Parliament for its first reading. The Bill was tabled by the
Chairperson of the Human Rights Committee, Hon. Jovah Kamateeka as a
private Member's Bill. On 31st March 2019, the Bill was signed into law by
the President of the Republic of Uganda and gazetted in November 2019,
putting it in operation.
She observed that the Human Rights (Enforcement) Act gives effect to
article 50 (4) of the Constitution by providing for the procedure of enforcing
human rights under Chapter 4 of the Constitution; and for related matters.
She added that the state as a duty bearer has a duty to ensure that human
rights and fundamental freedoms listed in the Constitution are respected by
all. She added that the state ought to ensure that the consequences for
abuse are severe and deterrent.
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She spent the next minutes taking the participants through the Act in detail.
She described that a person has locus standi before court when they have a
claim that a fundamental or other right or freedom guaranteed under the
Constitution has been infringed or is threatened. She addressed the issue
of jurisdiction of both the high court and the magistrates courts described in
section 4 and 5 of the constitution.
She pointed out unique features of the Act such as:-
no requirement for statutory notice
an action cannot be rejected/dismissed due to failure to comply with
any procedure, form or any technicality.
In case of a reference from the magistrates’ court, the court must
handle and determine reference within 90 days.
Nullification of a criminal trial and acquittal of an accused person in
case an accused person’s non-derogable rights are being infringed
upon.
Personal liability of a public officer who violates or participates in the
violation of a person's rights or freedoms
Part of compensation by guilty public officer.
Enforcement of progressive realization of rights and freedoms
Non application of immunity as a defense.
10 year limitation period save for non-derogable rights.
She later took the participants through the Judicature (Fundamental and
other human rights and freedoms) (Enforcement procedures) rules, 2019.
She stated that rules have a number of objectives such as:-
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promoting the right of any person to institute court action where he or
she believes that a fundamental right or other human right or
freedom under Chapter Four of the Constitution has been violated, or
that there is a threat that it is likely to be violated
encouraging the development of constitutional and public interest
litigation;
providing guidance to courts and litigants in the handling of public
interest litigation; and
promoting clarity, uniformity and consistency in the handling of public
interest litigation.
She observed that the procedure for the application under the rules should
be by notice on motion supported by an affidavit. However she noted that a
public interest action filed in the Constitutional Court shall be brought in the
form of a petition in accordance with the Constitutional Court (Petitions and
References) Rules, 2005, or by way of reference under Article 137 (5) of the
Constitution.
She noted that where the Rules do not sufficiently provide for any service of
process, procedure or other related matter in an action brought under these
Rules, the Civil Procedure Act and the Civil Procedure Rules shall apply with
necessary modifications.
She added that the court in granting any relief shall take into consideration
the need to redress a public injury and or enforce a public duty.
6.3. Challenges in the Enforcement of human rights in the justice system
This topic was still facilitated by Hon Justice Suzan Okalany.
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He started his presentation by stating that the challenge of being unable to
produce adequate evidence appears to be a major challenge for victims of
Human Rights violations detained and denied access to counsel at or soon
after arrest. She gave an example of the case of Bukenya Ali and 48 others
vs AG &3 others miscellaneous cause No. 10 of 2021 where the claimant
orders brough an action Violation of human rights and freedoms under
Articles 20, 23, 29, 43, 44, 126(1),128(2) and (3) and 50 of the 1995
constitution of Uganda as amended, sections 1, 3, 4, 8, 9, 11, 14 and 15 of
the Human Rights (Enforcement) Act, 2019 and the provisions of the
Judicature (Fundamental & Other Human Rights & Freedoms) (Enforcement
Procedure) Rules, 2019) for dentition in ungazetted areas, dentition beyond
48 hours, denial of access to their counsel or next of kin and medical
doctors, concurrent trial before the court marital and the chief magistrates
court and torture. Hon. Justice Ester Nambayo dismissed the application on
grounds that the applicants failed to prove some of their allegations to the
satisfaction of court.
She observed that the next challenge was the difficulty in the
implementation of the law by duty bearers. She also observed that being an
Act clearly providing for flexibility with procedure, since it is new she will
not be surprised to see technicalities featuring in our adversarial system.
She also noted that old decisions eg Charles Harry Twagira vs AG, DPP &
Kyomukama Sam Civil Appeal no.4 of 2007, now overtaken by events, may
be cited to justify striking off actions or for delaying hearings of matters
that demand expeditous determination.
She highlighted the dilemma that unrepresented indigent litigants brought.
These she observed are ignorant on the law and in case they bring an
action, there is a risk of a court acting as counsel.
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She discussed that while enforcing the observance of human rights, courts
are heavily dependent on the state which is directly answerable to the
executive, such as the police, to enforce its decisions. This undermines their
accountability to the judiciary for the state’s actions.
She noted that the Act gives courts a substantial amount of leverage in
enforcing its orders, thus strengthening them in enforcing human rights.
She however continued to discuss that the judiciary lacks sufficient
institutional independence to hold government entities accountable for
enforcing judicial decisions. She added that perceived or real corruption
undermines the trust that litigants have in the justice system.
In her final observation, Justice Suzan stated that despite the flexibility of
the Act in accomodating actions of a civil nature within criminal trials, there
will be many mis-filings. For example she used the example of Hon. Kipoi
Tonny Nsubuga vs Attorney General Miscellaneous Application no. 230 of
2018 the applicant brought his application by way of Notice of Motion
claiming that he was wrongly being charged in a military court with offences
relating to security c/s section 130 (1) (f) of the UPDF Act and yet he is a
civilian. The Hon. Justice Musa Sekaana noted that the Constitutional Court
had warned against challenging criminal proceedings in a civil court.
He cited the case of Dr. Tiberius Muhebwa vs Uganda Constitutional petition
no. 09 of 2012 and Constitutional Petition no. 10 of 2008 Jim Muhwezi & 3
others vs Attorney General and Inspector General Of Government where the
court cautioned against the stopping of criminal trials on allegations that the
trial would not be free and fair. In Jim Muhwezi & 3 others vs Attorney
General and Inspector General Of Government (supra), court noted further
as follows;
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“ The trial court is capable of fairly and accurately pronouncing itself
on the matter without prejudice to the accused. Where any prejudice
occurs the appeal system of this country is capable of providing a
remedy. was it to be otherwise, a situation would arise whereby
anyone charged with an offence would rush to the constitutional court
with a request to stop the prosecution pending hearing his challenge
against the prosecution. in due course, this court would find itself
engaged in petitions to stop criminal prosecutions and nothing else.
This could result into a breakdown of the administration of the
criminal justice system and affect the smooth operation of the
constitutional court” citing the decision in Sarah Kulata Basangwa vs
Inspectorate of government in miscellaneous no. 465 of 2011.”
The Hon. Justice Musa Sekaana held that the court being a civil court could
not delve into the propriety of criminal proceedings in a criminal court or
military court martial. He stated that there is an appeal system in criminal
trial system through which the applicant can raise his grounds of a mistrial
or defectiveness of charge sheet or challenge of proceedings in military
court martial after DPP had entered a nolle prosequi. that the applicant will
be able to challenge the proceedings by way of appeal, to court martial
appeal court, then to the appellate courts of judicature, namely the court of
appeal and the supreme court.
6.4 The Significance of rights based human approach in dispensing justice:-
Human Rights Based Approach; Rights holders and Duty Bearers
Ms Patricia Nduru took the participants through this session.
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7.0 CLOSING CEREMONY
HW Moses Angualia, Deputy Registrar Training JTI and Moderator for the
event thanked the participants for attending the event and remaining active
throughout all the sessions.
He ended by thanking the facilitators for honoring the invitation of JTI and
sparing their time to come and impart knowledge and share their
experiences with the participants.
8.0 CONCLUSION
The one-day training was successfully held and concluded. The JTI
management is confident that the knowledge and skills that the participants
acquired from the training was going to cause a positive change in their
stations.
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