Lost in the system: court admits it is to blame for man’s indefinite detention in mental asylum

23 February 2019 · Carmel Rickard

IT sounds like a Kafka novel: a man found criminally insane and thus not responsible for a murder he committed, sent to an asylum for observation. Then he was forgotten for years. Now, he says the doctors have ruled he is sane and he wants to be released. But the minister who has to decide whether to release him was never informed he was there in the first place. This month, however, Uganda’s Court of Appeal admitted it was at fault for not informing the right authorities of the man’s hospitalization as it should have done, and that his fundamental rights might thus have been seriously infringed.

Exactly 19 years ago Juma Muwonge, a car mechanic in the western Uganda district of Mbarara, was arrested for murder. In December 2003 the high court convicted him and sentenced him to be hanged. He sat on death row for nearly eight years before the court of appeal heard his matter and decided to take drastic action, setting aside the conviction and death sentence and referring him for psychiatric observation.

Finding him “not guilty by reason of insanity”, the court ordered that he be kept in custody by Uganda’s prison authorities “as a criminal lunatic in a prison facility”. The court further ordered that the case should be reported to “the Minister” for any further decision in accordance with the Trial on Indictment Act.

That was on 1 February 2010. Since then, nothing. The Minister was not given a medical report on Muwonge’s progress after three years and then every two years as required by law. In fact the Minister has given no report at all – because no-one told the Minister that Muwonge had been sent for psychiatric observation.

Muwonge now claims to have a clean bill of health from Butabika mental hospital - but what must he do to be released? He brought an application to the court of appeal, the court that sent him to hospital, telling them that his circumstances had changed since he was sent for treatment. And he also asked the court to order that the court’s original order, putting him in hospital custody under the Minister’s orders, be set aside.

The problem for the court, however, is that the judges no longer have jurisdiction over him and his future. Those decisions must be taken by the Minister, yet the Minister has no knowledge that the man is in a psychiatric hospital, waiting for him to decide on Muwonge’s future. And that problem in turn was caused because the court did not inform the Minister at the time it sent him for treatment.

The judges have now concluded that the matter was out of their hands. Muwonge’s future and possible release lay with the Minister because the law states that once someone is hospitalized as a “criminal lunatic” the Minister should be sent a report after three years and thereafter after every two years, and that based on these reports the Minister should decide whether the person should stay on in the institution or be released.

What happens next to Muwonge is up to the Minister, said the judges, not to the court. “(T)his court is not the proper forum to address the grievances of (Muwonge).”

The law “explicitly puts the burden on the court” that sends an accused for psychiatric observation to report this fact to the Minister. It should have been done in Muwonge’s case, but the court registrar on whom it was “incumbent” to do so, failed to inform the Minister.

Now, said the judges, the Minister ought to be sent a copy of the original order with an “explanatory letter due to the extreme delay”. Thereafter the Minister would take over responsibility for deciding Muwonge’s fate. “The system of administration of justice failed him”, the court declared. If regular reports are not sent to the Minister as required by law, “grave injustice will occur if the person is subsequently found to be of sound mind but is now kept in custody as if he is a convict for a serious offence.”

The Minister is the only one with the power to deal with the situation. “The appellate court discharged its duties by placing the person with the prison authorities … pending Minster’s orders. However, we note that it is the primary duty of the court which issues the interim order of placement in custody pending Minister’s order to immediately inform the Minister about it.”

The next problem however, is which Minister ought to be informed? The law appears not to stipulate, but the court assumed it should be the Minister whose mandate includes prisons and that it should thus be the Minister for Internal Affairs rather than the Minister for Justice and Constitutional Affairs. The confinement of someone with a mental disability should be handled by internal affairs, said the court, “as they are concerned with peace and stability”. However, there seems to be some uncertainty about this, and the court added, “We have not ruled out the fact that it may be any Minister under whose ministry the issue of the mental health of the prisoner may fall and the matter can be resolved administratively.”

Having found that the court failed to inform the Minister, whichever Minister that should have been, the court needed to clean up the mess, and issued the following directive: “We direct that the Registrar of this court should rectify the problem by writing to the Minister notifying him or her of the orders issued by this court on 1 February 2010 placing (Muwonge) under the administrative supervision of the Minister. Secondly, the Commissioner of Prisons shall cause to be made a special report (on Muwonge’s case) for consideration of the Minister.”

This followed the court’s finding of undue delay leading to a “possible infringement of the fundamental rights and freedoms of (Muwonge)” who might have been found sane several years ago, had the right steps been taken by the court and the prison authorities.

The court could not itself consider evidence about his present state of mind, but if it emerges that he was indeed ready for release some time ago “it would unveil grave injustice and breach of (his) fundamental rights.”

These and similar comments by the appeal judges, Hellen Obura, Stephen Musota and Christophe Madrama, must surely open the way for Muwonge – if he had indeed been institutionalized far longer than necessary – to consider a compensation claim because of the infringement of his rights.

Carmel Rickard

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