UGANDA CHRISTIAN UNIVERSITY MUKONO

NAME; NIWAMANYA JOSEPHINE

REG NO; S08B11/542
COURSE; LLB 4
COURSE UNIT; CLINICAL LEGAL EDUCATION II
LECTURER; PROF BRIAN DENNISON
TUTOR; ACHIENG MIRIAM
QUESTION; LEGAL MEMO
What special rights and privileges (if any) do persons with disabilities have within
the Uganda criminal justice system that other individuals do not have.

This question requires me to discuss the rights and privileges(if any) of persons
with disabilities that ordinary persons do not have. In an attempt to do so, I will
first define the key terms therein and then show the rights and privileges of the

persons with disabilities(if any) that an ordinary person does not have in the
Ugandan criminal justice system.

INTRODUCTION
A right is something that is due to a person by just claim, legal guarantee and
moral principle and a privilege is a special legal right, exemption or immunity
granted to a person or group of persons; an exemption to a duty1. Persons with
disabilities(herein PWD) include those who have long-term physical, mental,
intellectual or sensory impairments which in interaction with various barriers may
hinder their full and effective participation in society on an equal basis with
others2. A disability is a social phenomenon which sometimes causes persons
with disabilities to commit an offence in respect to that disability or disorder.

For any act to constitute a crime, it must have an element of actus reus (actual
act was committed and someone was affected) and mens rea (mental capacity)
while committing the offence. In most cases persons with disabilities do not
usually have their mental capabilities to discern right from wrong or that their
mental disability has gone so far as to affect their mental reasoning and so,
because of this, they are a special group of people that must be treated carefully.
The criminal responsibility of persons with mental and intellectual disabilities, is
based on the survival of the insanity defense3 and not guilty by reason of
insanity or unfitness to plead clauses in the Trial on Indictment Act.

1
2
3

Bryan A. Garner, Black's Law Dictionary, 8th Edition, page 1347 and 1234 respectively
Article 1 Convention on the Rights of Persons with Disabilities (2007)
Section 10, Penal Code Act, Cap 120 Laws of Uganda

The McNaughten rule4 provides that every man is to be presumed to be sane

and to produce a sufficient degree of reason until the contrary is proved as to
establish the defense of insanity and it must be clearly proved that at the time of
committing the offence and the party accused was labouring under such a defect
of reason from disease of the mind as not to know the nature of and quality of the
act he was doing or if he did know it, that he did not know that he was doing
what was wrong. The Convention on the Rights of Persons with Disabilities
provides that the existence of a mental or intellectual disability does not
necessarily constitute the basis for non-ascription of responsibility but should
instead be based on otherwise generally applicable grounds such as criminal
intent, general circumstances of the crime and motivation 5 among others.

Article 21 of the Constitution of Uganda recognizes all persons as equal

before the law and that they should not be discriminated against based on
grounds of their disability. Article 32 of the same Constitution provides for
affirmative action for the marginalized groups of which the persons with
disabilities are also included. Therefore the person with disabilities is entitled to
the same rights and privileges with all Ugandans which must be protected by the
Ugandan criminal justice system.

RIGHTS AND PRIVILAGES OF PERSONS WITH DISABILITIES WITHIN THE

CRIMINAL SYSTEM IN UGANDA.
A person with disabilities may become exposed to the criminal justice system as a
4

McNaughten's case (1843) 8 ALLER 792

Working Paper, A Review of the Ugandan Legal Framework Relevant to Persons with Disabilities. Comparative Analysis
to The Convention on the Rights of Persons with Disabilities, page 13
5

victim of a crime, as a person suspected or accused of a crime or as a witness.

Article 23 and Article 28 of the Constitution of the Republic of
Uganda(1995) as amended, provides for the protection of a persons liberty
and the rights of an accused person. They set out provisions which are aimed
at securing the protection of the law for any persons accused with a criminal
offence and safeguard the fundamental human rights of all people in Uganda
where the rule of law exists. Therefore these rights must be observed and
protected by the whole criminal justice system which includes the police and the
courts of law.

Any accused person has a right to a fair and speedy trial6 before an
independent and impartial court. This constitutional right upholds the principles of
natural justice that no person shall be condemned unheard. Therefore, every
person- disabled or not shall be presumed innocent until proven guilty or
until the person has pleaded guilty7 and so the accused person shall be
present(right to habeas corpus)8 in court to give his defense as to the charges
brought against him in court.

Every person disabled or not has a right to be informed in a language he

understands as to the nature of his offence, and where the person is deaf or
dumb or any other person with disabilities who might not understand what is
being said by the police, they shall be afforded, without any expense by the

6
7
8

Article 28 1) Constitution of the Republic of Uganda 1995 as amended

Article 28 3) a), ibid
Article 23 9), ibid

accused shall be entitled an interpreter9 at the trial.

Any person with disabilities is entitled a right to bail10 in the criminal justice
system. Bail is the temporary release of an accused person from custody of court
or the police on condition that they will
always show up to court when called upon. Therefore, bail is a constitutional right
that must be applied for as provided under Article 23(6)a) of the Constitution.

Every accused person disabled or not has a right to access11. Where the person
has been restricted or detained, their next of kin or lawyer shall be informed as
soon as practicable an they shall be allowed reasonable access. Where a personal
doctor or medical care is asked for, the accused person shall be allowed that
access and where this right is denied, it shall amount to a violation of human
rights as to the right to life, right to freedom from torture and the respect to
personal dignity and protection from inhumane treatment and the right to the
protection of personal liberty12.

Every accused person, disabled or not has a right to be given adequate time
to prepare his defense and a right to legal representation by the state or
at his own expense where he chooses his own legal representation.

All persons- disabled or not have a right to cross-examine prosecution

9
10
11
12

Article 28 3) b) and f), ibid

Article 23(5) ibid
Article 23 5), supra, note 6
Article 22, 24 and 23 respectively

witnesses and obtain to their own attendance witnesses13 in court during a

trial. Persons with disabilities also have a right to give evidence in court as
witnesses just like non-disabled persons. Most persons with an intellectual
disability as well as those who cannot effectively communicate due to a physical
disability are often precluded from giving evidence in a court due to their
perceived lack of capacity. A person will only be competent to give evidence in a
court or judicial tribunal where they are able to swear an oath or make an
affirmation and where they understand the general nature and significance of the
proceedings. It should also be noted that where a person's evidence is suspect
due to their mental condition, their evidence will require corroboration14.
However where the evidence is precluded merely because it was uncorroborated
evidence from a mental person is discriminatory because many people with an
intellectual disability are able to give reliable evidence. They should not be
precluded by reason of their disability alone.
When it comes to sentencing, criminal offenders with an intellectual disability
are more likely to receive custodial sentences than non-disabled offenders,
and these sentences are likely to be of a longer duration. This is both a right and a
privilege largely due to the lack of alternatives available to a sentencing judge or
magistrate. Where the accused person has successfully raised the defense of
insanity15 or where a person is believed by court to be insane at the proceedings
of the trial, and upon court's inquiry into the insanity of the accused person and
find that they are actually of unsound mind16, the accuse person maybe acquitted

13
14
15
16

Article 28 3) g) supra note 6

R v Spencer (1987) AC 128
Section 11 Penal Code Act, Cap 120, Laws of Uganda
Section 2, Mental Treatment Act, Cap 279

or confined as a criminal lunatic in a mental hospital17 or prison where they are

detained in a separate wing for the purpose of care or treatment of that person or
for the protection of other prisoners and the rest of the community where they are
given medical care to prevent their state of mind from further deterioration or
charges against such persons be dropped18.

CONCLUSION AND RECOMMENDATIONS

All persons are equal before the law irrespective abilities or disabilities, this goes
to show that all the rights of persons of an accused person provided for in the
constitution all apply equally to those persons with disabilities therefore they are
not entitled to special rights or privileges. However caution and care is needed
when dealing with persons with disabilities because of their delicate nature
especially those with limited short-term memory or conceptual skills to
understand clearly what is being asked and the significance of actions when it
comes to police interviews. There is also great need for increased support to
magistrates and judges in understanding the particular difficulties of people with
disabilities, as well as ensuring a variety of sentencing.
BIBLIOGRAPY
LITERATURE
Bryan A. Garner, Black's Law Dictionary, 8th Edition
California Department of Justice, Legal Rights of Persons with Disabilities,
November 2003 with Sections Revised 2006
Missouri Protection & Advocacy Services, Legal Rights Handbook, September 2004
OHCHR, Working Paper, A Review of the Ugandan Legal Framework Relevant to
Persons with Disabilities. Comparative Analysis to The Convention on the Rights
17
18

Section 4, ibid
Section 45-49, Trial on Indictments Act, Cap 23

of Persons with Disabilities, August 2008

United Nations Office on Drugs and Crime- Vienna, Handbook on Prisoners with
Special Needs, Criminal Justice Handbook Series, United Nations , New York, 2009

STATUTES
Constitution of the Republic of Uganda 1995 (as amended)
Persons With Disabilities Act 2006, Laws of Uganda
Penal Code Act, Cap 120, Laws of Uganda
The Convention on the Rights of Persons with Disabilities (2007)
The Mental Treatment Act, Cap 279, Laws of Uganda
Trial on Indictments Act, Cap 23, Laws of Uganda