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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.12 n.2 Pretoria  2012

 

RECENT DEVELOPMENTS

 

The Ugandan Transfer of Convicted Offenders Act, 2012 : A commentary

 

 

Jamil Ddamulira Mujuzi

Senior Lecturer, Faculty of Law, University of the Western Cape; Post-Doctoral Research Fellow, Community Law Centre, University of the Western Cape, South Africa

 

 


SUMMARY

Like many countries, Uganda is home to foreign nationals. The presence of foreign nationals in the prison of a country raises questions regarding their treatment. Countries are increasingly enacting legislation, ratifying or acceding to treaties, or signing agreements governing the transfer of such offenders to serve the last part of their sentences in their countries of nationality, citizenship or domicile. On 17 May 2012, the Ugandan Parliament passed the Transfer of Convicted Offenders Bill, 2007 into law. The Transfer of Convicted Offenders Act was assented to by the President of Uganda on 27 July 2012 and, once it comes into force, will regulate the transfer of convicted offenders between Uganda and other countries. The purpose of the article is to highlight the debates surrounding some provisions of the Bill, including the purpose of the Act; human rights issues, consent of offenders to transfer; the costs of the transfer; and pardon and amnesty.


 

 

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* LLB (Hons) (Makerere), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLM (Free State), LLD (Western Cape);djmujuzi@gmail.com. I am indebted to the South African National Research Foundation and the University of the Western Cape for providing me with the funds that I used to travel to Uganda to conduct research for the purpose of writing this article. The usual caveats apply.
1 It is estimated that close to 1% of the prisoners in Ugandan prisons are foreign nationals. See International Centre for Prison Studies http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=51 (accessed 31 October 2012).
2 See M Walubiri 'Ugandans in foreign jails to be brought home' The New Vision 22 May 2012 http://www.newvision.co.ug/news/631254-Ugandans-in-foreign-jails-to-be-brought-home.html (accessed 31 October 2012).
3 The Transfer of Convicted Offenders Bill 14 of 2007 Uganda Gazette 35 vol C, 13 July 2007.
4 See Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Uganda on the Transfer of Convicted Persons (2 June 2009).
5 See http://www.gov.mu/portal/sites/mfamission/addisababa/news.htm (accessed 19 November 2012).
6 The debates took place on 17 May 2012 between 15.33 and 17.40. Both the second and third readings of the Bill were completed within that time and the Bill was passed. See Hansard of Parliament of Uganda, 17 May 2012 3582-3605 (on file with the author).
7 Transfer of Convicted Offenders Act, 2012.
8 Sec 1 of the Act provides that '[t]he Act shall come into force on such day as the Minister may by statutory instrument appoint'. As at the time of writing, the author's attempts to ascertain whether this Act had come into force were futile.
9 Transfer of Convicted Offenders (Enactment and Enforcement) Act, ch T16, 1988.
10 Transfer of Convicted Persons Act, 2007 (Act 743).
11 Transfer of Convicted Offenders Act 9 of 2005.
12 Transfer of Prisoners Act 10 of 2004.
13 Transfer of Prisoners Act 10 of 2001.
14 Transfer of Convicted Persons Act 26 of 1998.
15 Transfer of Offenders Act 14 of 1990.
16 Transfer of Convicted Offenders Act 10 of 2001.
17 Transfer of Prisoners Act, 2001.
18 Transfer of Offenders Act 25 of 1995.
19 See 'Zambia and Mozambique sign MoU on the transfer of convicted persons' Lusaka Times 26 July 2011 http://www.lusakatimes.com/2011/07/26/zambia-mozambique-sign-mou-transfer-convicted-persons/ (accessed 31 October 2012).
20 See 'Ghana, Nigeria to exchange prisoners' Modern Ghana News 12 January 2010 http://www.modernghana.com/print/258677/1/ghana-nigeria-to-exchange-prisoners.html (accessed 31 October 2012).
21 See Agreement Between the Government of the United Republic of Tanzania and the Government of the Republic of Mauritius on the Transfer of Convicted Offenders, First Schedule to the Transfer of Prisoners (Republic of Tanzania) Regulations 2008, GN 45 of 2008.
22 See 'Mozambique: Prisoner transfer agreement with Malawi' 20 March 2012, AllAfrica.com http://allafrica.com/stories/201203201309.html (accessed 31 October 2012).
23 See 'Malawi, Zambia to exchange prisoners' Global Times 7 October 2009 http://world.globaltimes.cn/africa/2009-10/474864.html (accessed 31 October 2012).
24 See A Agbese 'Nigeria: Thailand to repatriate 500 Nigerian prisoners' 4 December 2000, AllAfrica.com http://allafrica.com/stories/200012040126.html (accessed 31 October 2012).
25 Agreement Between the Government of the Republic of Mauritius and the Government of the Republic of India on the Transfer of Prisoners, Schedule to the Transfer of Prisoners (Republic of India) Regulations 2006, GN 29 of 2006.
26 See Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Uganda on the Transfer of Convicted Persons (2 June 2009); Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ghana concerning the Transfer of Prisoners (17 July 2008); Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda on the Transfer of Sentenced Persons (11 February 2010); Treaty Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Great Socialist People's Libyan Arab Jamahiriya on the Transfer of Prisoners (17 November 2008); Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Morocco on the Transfer of Convicted Offenders (21 February 2002).
27 Convention on the Transfer of Sentenced Persons, CETS 112, entered into force on 1 July 1985, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=112&CM=8&DF=&CL=ENG (accessed 31 October 2012).
28 Para 3 Memorandum to the Bill.
29 See Human Rights Watch 'Even dead bodies must work: Health, hard labour, and abuse in Ugandan prisons' 14 July 2011 http://www.hrw.org/node/100272 (accessed 31 October 2012). See also the discussion below on human rights.
30 R Baguma 'UK funds Luzira prison rehabilitation' The New Vision 4 September 2009 http://www.newvision.co.ug/D/8/13/693494 (accessed 31 October 2012).
31 The International Prisoner Transfer Unit (IPTU) of the Department of Justice of the United States of America uses the Guidelines for Evaluating Prisoner Transfer Applications and the likelihood of social rehabilitation is one of the factors that have to be considered before a request for the transfer of an offender is allowed. In assessing whether there is a likelihood of the offender's social rehabilitation, the IPTU looks at the following issues: the prisoner's acceptance of responsibility; his criminal history; the seriousness of the offence; criminal ties to the sending and receiving countries; and family and other social ties to the sending and receiving countries. See M Abbell International prisoner transfer (2010) 373.
32 It has been argued that there are several policy considerations for countries to enter into prisoner transfer agreements. 'The main problems facing a foreign prisoner are the cultural and language barriers, the lack of rehabilitation programmes and refusal of conditional release programmes (due to the perceived flight risk), and the general prejudice faced by the foreign prisoner, other prisoners, and prison staff. Prisoner transfer agreements were seen as a way to alleviate these additional burdens on the foreign prisoner. However, it would appear that these treaties are now also seen as a method by which the sentencing country can expel foreign prisoners and relieve itself of a considerable financial strain, which is a motive which runs contrary to the humanitarian goals of these treaties.' See MC Bassiouni 'United States policies and practices on execution of foreign sentences' in MC Bassiouni (ed) International criminal law: Multilateral and bilateral enforcement mechanisms (2008) 588. In Italy, an autonomous trade union for prison warders reportedly urged the government to sign prisoner transfer agreements because '[s]uch agreements would free up prison spaces and help the Italian government save millions of euros'. See 'Send foreign prisoners back home, Italy urged' News Africa 27 August 2012 http://www.africa-news.eu/immigration-news/italy/4576-send-foreign-prisoners-back-home-italy-urged.html (accessed 14 November 2012).
33 The Report of the Uganda Constitutional Commission: Analysis and Recommendations (1992) para 7.80.
34 Para 7.171.
35 Para 7.171(b).
36 Para 7.171(c).
37 Para 7.171(d).
38 Para 7.171(e).
39 See Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Mr Basaliza, 1 July 1994 504; Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Mr Bamwenda, 4 July 1994 523; Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Mr Atwoma Tiberio, 20 March 1995 3429 3437.
40 Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Prof Kanyeihamba 18 May 1995 4370.
41 Prisons Act 2006.
42 Sec 57(a).
43 Sec 57(b). For a detailed discussion of the right to freedom from discrimination in the Ugandan Constitution, see JD Mujuzi 'The drafting history of the provision on the right to freedom from discrimination in the Ugandan Constitution with a focus on the grounds of sex, disability, and sexual orientation' (2012) 12 International Journal of Discrimination and the Law 52-76.
44 Sec 57(c). For a detailed discussion of the right to freedom of worship in Uganda, see JD Mujuzi 'The right to freedom to practise one's religion in the Constitution of Uganda' (2011) 6 Religion and Human Rights 1-12.
45 Sec 57(d).
46 Sec 57(e).
47 Sec 57(f).
48 Sec 82.
49 Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Mr Sam Kutesa, 22 May 1995 4416; Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Mr Sam Ringwegi, 22 May 1995 4417. See also Mr Masika, 22 May 1995 4426; Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation) submission by Mr Naburri, 24 June 1994 319.
50 Prevention and Prohibition of Torture Act 2012.
51 Conclusions and Recommendations of the Committee against Torture on Uganda's initial report, CAT/C/CR/34/UGA, 21 June 2005 paras 6(f), 10(m) & 11(c).
52 Para 18 Concluding Observations of the Human Rights Committee on Uganda's initial report, CCPR/CO/80/UGA, 4 May 2004.
53 Para 19 Concluding Observations of the Human Rights Committee on Uganda's initial report, CCPR/CO/80/UGA, 4 May 2004.
54 Prisons Act 2006.
55 Sec 81(2).
56 Sec 81(1).
57 See Mission Report by the Special Rapporteur on Prisons and Conditions of Detention in Africa on the visit to Uganda 11-22 March 2001 http://www.achpr.org/states/uganda/missions/prisons-2001/ (accessed 15 November 2012).
58 I Imaka 'Overcrowded prisons facing food shortages' The Daily Monitor 9 August 2012 http://www.monitor.co.ug/News/National/Overcrowded-prisons-facing-food-shortages/-/688334/1474842/-/en4hpqz/-/index.html (accessed 15 November 2012).
59 GM Araali 'Remands are straining our resources, says prison boss' The Daily Monitor 23 July 2012 http://www.monitor.co.ug/News/National/Remands-are-straining-our-resources--says-prison-boss/-/688334/1460920/-/wqrgys/-/index.html (accessed 15 November 2012).
60 International Transfer of Prisoners Act 16 of 2009.
61 Transfer of Prisoners Act 8 of 1997.
62 Even the Additional Protocol to the Convention on the Transfer of Sentenced Persons, European Treaty Series 167 (1997) is silent on the rights of the transferred person except, in limited circumstances, with regard to the right not to be tried for the offence that was committed in the administering state before the transfer. See art 3.
63 For a brief drafting history of the United Nation's Model Agreement on the Transfer of Foreign Prisoners, see M Abdul-Aziz 'International perspective on transfer of prisoners and execution of foreign penal judgments' in Bassiouni (n 32 above) 529-532. See also United Nations Office on Drugs and Crime Handbook on the international transfer of sentenced persons (2012) 17-18.
64 For the drafting history of the Scheme for the Transfer of Convicted Offenders within the Commonwealth, see AMF Webb The scheme for the transfer of convicted offenders within the Commonwealth: Explanatory documentation prepared for Commonwealth (1987) 1-39.
65 See Preamble to the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda on the Transfer of Sentenced Persons (11 February 2010) and Preamble to the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Uganda on the Transfer of Convicted Persons (2 June 2009).
66 Art 9 of the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda on the Transfer of Sentenced Persons (11 February 2010); art 9 of the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Uganda on the Transfer of Convicted Persons (2 June 2009).
67 See Human Rights Watch (n 29 above).
68 In Uganda v Nabakoza ¡ackline & Others [2004] UGHC 24 (7 September 2004) the High Court, in setting aside the sentence of three months' imprisonment that had been imposed on the accused and substituting it with a sentence of caution, considered, inter alia, the fact that prisons in Uganda were overcrowded and that there was no need for the accused, who had committed the minor offence of being idle and disorderly, to be sentenced to direct imprisonment.
69 Baguma (n 30 above).
70 Hansard of Parliament of Uganda, 17 May 2012, Committee Report 3585.
71 Cl 5(1).
72 Cl 5(2).
73 Hansard of Parliament of Uganda, 17 May 2012, submissions by Baka 3888-3589.
74 Mr Baka submitted that '[t]he justification is that the UN Committee against Torture, in Tapia Paez vSweden (Communication 39/1996), on 28 April 1997 noted: "The test of article 3 of the Convention against Torture is absolute. Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another state, the state party is under obligation not to return the person concerned to that state. The nature of activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention." It is also to comply with the UN Human Rights Committee General Comment 31.' See Hansard of Parliament of Uganda, 17 May 2012 3589 (emphasis removed).
75 Hansard Parliament of Uganda, 17 May 2012 3589.
76 As above.
77 As above.
78 As above.
79 As above.
80 Hansard Parliament of Uganda, 17 May 2012, submission by Mugabi 3590.
81 As above.
82 See secs 5 & 6.
83 Art 1 of CAT defines torture to mean 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.'
84 S Kakaire 'Parliament passes law to criminalise torture' The Observer 27 April 2012 http://observer.ug/index.php?option=com_content&task=view&id=18439&Itemid=114 (accessed 14 November 2012). The Prevention and Prohibition of Torture Act, 2012 was assented to by the President of Uganda on 27 July 2012.
85 See discussion below on consent.
86 For a distinction between absolute and non-derogable rights, see A Conte Human rights in the prevention and punishment of terrorism: Commonwealth approaches: The United Kingdom, Canada, Australia and New Zealand (2010) 284-287.
87 Arts 4 & 7 ICCPR.
88 Art 44 Constitution of Uganda.
89 See sec 7.
90 Prisons Act 2006.
91 Committee Report, Hansard Parliament of Uganda, 17 May 2012 3585.
92 Cl 21(1) provided that '[a]fter a convicted offender is transferred to Uganda, the proper authority in Uganda shall notify the sentencing country (a) when it considers enforcement of the sentence to be completed; (b) if the convicted offender escape from custody before the enforcement of the sentence is completed; (c) if the offender commits any other offence while serving sentence; or (d) if the offender dies while serving sentence'.
93 Sec 21(3) provides that '[t]here shall be a regular inspection of penal institutions and correctional services of the administering country by qualified and experienced inspectors appointed by the proper authority to ensure that these institutions are administered in accordance with existing laws and regulations and to bring about the objectives of penal and correctional services'.
94 Sec 8 of the Transfer of Convicted Offenders (Enactment and Enforcement) Act, ch T16, 1988 provided: '(1) The sentencing country shall ensure that the convicted offender or a person authorised to act on his behalf [due to the convicted offender's age or his physical or mental condition] ... voluntarily and in writing with full knowledge of the legal consequences thereof; and the procedure for giving such consent shall be in accordance with the law of the sentencing country. (2) The sentencing country shall afford to the administering country every opportunity to verify that the consent is given in accordance with the provisions of subsection (1) of this section.' Sec 3 of the Transfer of Convicted Offenders (Enactment and Enforcement) (Amendment) Bill, 2011 deletes sec 8 of the main Act. This Bill was passed in October 2011. See 'Nigeria: Representatives pass transfer of Convicted Offenders Bill' AllAfrica http://allafrica.com/stories/201110070519.html (accessed 31 October 2012).
95 Art 4(3) (Libya); art 2(3) (Rwanda). The treaty with Rwanda expressly mentions that the offender's consent will not be required for the transfer to take place.
96 M Abdul-Aziz 'International perspective on transfer of prisoners and execution of foreign penal judgments' in Bassiouni (n 32 above) 533.
97 See sec 6(d).
98 Hansard Parliament of Uganda, 17 May 2012, submission by Baka 3590.
99 Sec 9(1).
100 Sec 6(d).
101 See art 3 of the Convention on the Rights of the Child and generally the Convention on the Rights of Persons with Disabilities.
102 The implications of the transfer on the duration that the offender will spend in prison is one of the issues that lawyers have dealt with in cases where offenders have been transferred to and from the United States of America. See Abbell (n 31 above) 27-30 110-111.
103 Abbell (n 31 above) 24-26 102-103.
104 Uganda could also use diplomatic or consular corps or any other official do verify the prisoner's consent.
105 See Abbell (n 31 above) 30-31 111-112.
106 Hansard Parliament of Uganda, 17 May 2012, submission by Mr Baka 3598.
107 Hansard Parliament of Uganda, 17 May 2012, submission by Deputy Chairperson of the Committee 3598.
108 Hansard Parliament of Uganda, 17 May 2012, submission, Committee Report 3585.
109 See sec 19 of the Act.
110 Thomas Kwoyelo Alias Latoni v Uganda (Constitutional Petition 036/11) (judgment of 22 September 2011).
111 Evidence presented to the Constitutional Court showed that by the time of the petitioner's trial, 24 066 rebels had been granted amnesty from prosecution and that in 2010, when the applicant applied for amnesty, 274 were granted amnesty but the applicant was not granted amnesty. See Thomas Kwoyelo (n 110 above) 17.
112 As above.
113 Art 7(2) Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Uganda on the Transfer of Sentenced Persons (2 June 2009).
114 n 113 above, art 7(4).
115 Hansard Parliament of Uganda, 17 May 2012, submission by Alaso 3595.
116 Hansard Parliament of Uganda, 17 May 2012, submissions by the Deputy Chairperson of the Committee and by Mugabi 3595.
117 See sec 4(3) of the Zambia Transfer of Convicted Persons Act.
118 Art 3(b) of the Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Peru on the Transfer of Sentenced Persons (7 March 2003).
119 Art 4(h) of the Treaty Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Lao People's Republic on the Transfer of Sentenced Persons (7 May 2009).
120 See, generally, JD Mujuzi 'Towards the establishment of a prisoners transfer legal regime in South Africa: Failed attempts, available options and critical issues to consider' (2012) 20 African Journal of International and Comparative Law 281-300.
121 Hansard Parliament of Uganda, 17 May 2012 3599. Cl 22 would become sec 22 of the Act.
122 Hansard Parliament of Uganda, 17 May 2012, Committee Report 3585.
123 Mujuzi (n 120 above) 281-300.
124 Inter-American Convention on Serving Criminal Sentences Abroad, OAS Treaty Series 76.
125 Para 11 Explanatory Report on the Convention on the Transfer of Sentenced Persons http://conventions.coe.int/Treaty/EN/reports/html/112.htm (accessed 19 November 2012).
126 Czech Republic ratified this treaty on 13 October 2011 and Saudi Arabia on 8 July 2011. See http://www.oas.org/juridico/english/sigs/a-57.html (accessed 19 November 2012).
127 Sec 2 Swaziland Transfer of Convicted Offenders Act.
128 Sec 1 Namibian Transfer of Convicted Offenders Act.
129 See, generally, JD Mujuzi 'Alternative sentencing under African human rights instruments and mechanisms: Lessons for Southern Africa' (2008) 8 University of Botswana Law Journal 47.
130 The trend in Europe is also to transfer not only offenders sentenced to imprisonment, but also those sentenced to non-custodial measures or those on parole. See the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders. For a brief discussion of the benefits of transferring offenders sentenced to non-custodial sentences or those released on parole, see Abbell (n 31 above) 147-148.
131 Sec 89.
132 C Ariko 'Prisons to launch parole system' The New Vision 10 December 2007 http://www.newvision.co.ug/D/8/13/601422 (accessed 19 November 2012).

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