The Jurisdiction of Ugandan Domestic Courts over Accused Persons Abducted from Abroad

Abstract In Omar Awadh Omar and 10 Others v Attorney General (2014), the Constitutional Court of Uganda dealt with the issue of whether a Ugandan court is required to stay criminal proceedings on the basis that the accused was abducted from a foreign country. Since this was the first time that the Court grappled with what it referred to as a ‘novel’ question, it relied on case from countries such as the United States of America, the United Kingdom, Zimbabwe and South Africa in which courts dealt with similar issues. Invoking the principles in these cases, it held that before a court orders the stay of criminal proceedings where an accused was abducted from a foreign country, it has to consider three issues: the seriousness of the offence(s); the danger(s) the accused poses to society; and the role of the Ugandan government in the abduction of the accused. However, the Court took the view that the seriousness of the offence is the most important principle that should be considered in deciding whether courts have jurisdiction over a person abducted from abroad. In this article, it is argued that the most important consideration should be whether the Ugandan authorities played a role, directly or indirectly, in the accused’s abduction. Once it is established that they played any role, the proceedings should be stayed irrespective of the seriousness of the offence or the danger the accused poses to society. Otherwise, courts would be encouraging Ugandan authorities to disregard international law contrary to the constitution. The author also deals with, inter alia, the issue of the admissibility of evidence obtained in violation of the abducted person’s rights while abroad.