Pre-trial detention is the stage in the criminal justice system when a person accused of committing an offence is arrested and detained as he/she awaits trial and the decision of court. It is the duty of the State to bring the accused person to justice without delay. This is in accordance with the Constitutional right to a fair, speedy and impartial trial. However, delays in disposing of criminal cases are rampant in Uganda.
In Uganda the right to a fair and speedy trial is protected under the 1995 Constitution of Uganda under Chapter four that deals with the inherent human rights of the citizens of Uganda. Article 126 (2) (b) of the Constitution provides that “justice shall not be delayed”. This is in line with the Equity maxim “justice delayed is justice denied.”
A person accused of a criminal case has the right to a speedy trial. Article 28 (1) of the Constitution provides for the right to a fair hearing which also includes the right to have a fair and speedy trial of all matters, in the courts of law. This Article imposes a duty on the prosecutor and the Magistrate or Judge to try the accused person within reasonable time or without delay.
A speedy trial guarantee means that the accused must be brought to trial or released within a reasonable amount of time. The government is not legally permitted to lock people up indefinitely without trying them. Persons charged with criminal offences should have their cases handled expeditiously. Therefore a violation of this right is both a violation of international law and the Constitution of Uganda.
Article 44 of the Constitution states that there are four non-derogable rights (these are rights that cannot be taken away from an individual) i.e. freedom from torture, freedom from slavery, the right to a fair hearing, and the right to an order of habeas corpus. Therefore it is clear that the right to a fair and speedy trial is a non-derogable right that is guaranteed and cannot be taken away from an individual under any circumstances.
Violation of the right to a speedy trial is not just a violation of the fundamental rights to a fair hearing, but also a violation of other fundamental human rights. Though the accused may be innocent, the accused under delayed detention suffers not only mental/ psychological agony, separation from family members, deprivation of homely comforts, loss of liberty, loss of monetary income, loss of confidence and trust in the judicial system, but also public humiliation. The family members also face humiliation and social stigma. The children are deprived of fatherly love, affection and protection and economic support. The wife deprived of the husband’s protection may have to struggle hard to support the family.
The Constitution requires the Police to produce a suspect arrested and detained in court within forty eight (48) hours. Where this is not done it amounts to unlawful imprisonment which is a civil wrong for which the victim may sue for damages.
Where the circumstances do not favour trial within a reasonable time, for example, where the investigation process is too lengthy, the accused person should be released on bail. Bail is the release of an accused person from detention pending trial or until Court takes a decision on his/her case.
Uganda Human Rights Commission receives complaints on virtually all human rights violations. It investigates complaints in appropriate cases and compensation is awarded to victims of human rights violations.