HIGH COURT GRANTS #COSF19 ACCESS TO THEIR LEGAL REPRESENTATION

The civil division of the High Court has granted Human Rights Awareness and Promotion Forum (HRAPF) access to the #COSF19. In the same judgement, the court also ruled that the costs incurred by the applicant (HRAPF) in pursuing this case be provided for by the respondents.

Justice Micheal Elobu based the judgement on the un-rebutted evidence of continued denial of access to counsel for the accused persons. HRAPF has on several occasions, since the arrest, tried to gain access to their clients but all efforts were futile as they meant constant resistance from the Commissioner General of Prisons.

FACTS OF THE CASE AS SHARED IN COUNSEL ADRIAN JJUKO’S DEPOSITION

That on the 29th of March 2020, the Accused Persons instructed the Legal Aid Clinic of Human Rights Awareness and Promotion Forum (HRAPF) to represent them in their defence against criminal charges which are preferred against them.
That the criminal charges arose out of the arrest of the Accused Persons on 29th March 2020, following which event they were detained at Nkokonjeru Police Post until 31st March 2020 when they were arraigned before the Chief Magistrates Court of Mpigi at Nsangi on charges of doing 'a negligent act likely to spread infection of disease' contrary to section 171 of the Penal Code Act and remanded to Kitalya Prison until 28 ^thApril 2020.
That on 3 1 st March 2020 when the Accused Persons appeared in court, their legal counsel were unable to get to the Court on time because of the restrictions on transport that had been imposed the night before as one of the measures to prevent the spread of COVID- 19.
That later on the same day, Advocates from the Legal Aid Clinic of Human Rights Awareness and Promotion Forum (HRAPF) made a visit to Kitalya Prisons, where they were informed by the Officer in Charge that the accused persons were not in custody of Kitalya Prisons, and that in any case, lawyers could be only granted access with express permission from Prisons Headquarters.
That on 2 ^ndApril 2020, the Advocates visited Kabasanda Prison to find out whether the Accused Persons had been taken to that prison instead of Kitalya Prisons. The Officer in Charge of the Prison informed the Advocates that they did not have the said persons in their custody, and then provided the lawyers with the telephone contact of the Officer in Charge of Kitalya Prison. One of the Advocates, Ms. Patricia Kimera then called the Officer in Charge of Kitalya Prison on the number provided, and he confirmed that he had the Accused Persons in detention, but that he could only provide the lawyers access to them with express permission from Prisons Headquarters because of the COVID-19 restrictions.
That on 3 ^rdApril 2020, a letter was written asking the Commissioner General of Prisons for permission for Ms. Patricia Kimera to access the Accused Persons in order to advise them on the legal options available to them.
That the Commissioner General of Prisons responded to that request 19 days later by a letter dated 22nd April 2020, in which it was stated that the HRAPF lawyers could not be allowed to access their clients because 'of the current COVID-19 pandemic lockdown.' The lawyers were advised 'to be patient until the situation improves'
That the Accused Persons' trial was scheduled for 28th April 2020 starting at 9 0'clock before Her Worship SARAH BASEMERA at the Chief Magistrate's Court of Mpigi at Nsangi.
That the applicant has made all best endeavours and efforts to access their clients but in vain due to the Respondents' refusal to grant access.
That the actions of the Respondents in denying the Accused Persons legal representation contravene and are in violation of the Accused Persons fundamental right to a fair hearing guaranteed under article 28(3)(a),(c),(d) and article 44(c) of the Constitution of the Republic of Uganda.
That the actions of the Respondents in denying the Accused Persons legal representation contravene and are in violation of the Accused Persons fundamental right to liberty guaranteed under article 23(5)(b) of the Constitution of the Republic of Uganda.
That there is an imminent threat and danger of continued and further violation and contravention of the Accused Persons' fundamental Constitutional rights to a fair hearing guaranteed under articles 28(3)(a), 28(3)(c), 28(3)(d) and article 44(c) of the Constitution of the Republic of Uganda.
That there is an imminent threat and danger of continued and further violation and contravention of the Accused Persons' fundamental Constitutional rights to liberty guaranteed under articles 23(5)(b) of the Constitution of the Republic of Uganda.
That there is an imminent threat and danger that the Accused Persons will suffer a miscarriage of justice.
That it is urgent, equitable and in the interest of justice that this application is allowed.