THE REPUBLIC OF UGANDA

 

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

 

[Coram: A Nshimye, E Mwangusya, R Buteera, T Ekirikubinza & F Egonda-Ntende, JJA]

 

CONSTITUTIONAL PETITION NO. 53 OF 2010

 

BETWEEN

 

Behangana Domaro==================Petitioners

Mangadalen Behangana Birungi

 

AND

 

The Attorney General==============Respondent

 

JUDGMENT OF THE COURT

 

•  

 

1. The petitioners are spouses. Petitioner No.1 is a businessman based in Mbarara town and dealing in spare parts for motor cycles which he vends in various towns of Western Uganda. He was arrested by the Police in Mbarara on 3^rd July 2010. He was beaten by police officers led by Jimmy Okiror, head of Rapid Response Unit, Mbarara and Milton Gumisiriza, using batons, and causing him bodily harm and trauma. The Police Officers seized from him Shs.4,505,000.00, voters card, shoes , belt and clothes.

 

1. The police officers further seized spare parts from his car worth Shs.81,738,000.00. All the seized properties have never been returned to the petitioner to this day.

 

1. The police officers informed the petitioner no.1 that he was arrested on account of having knocked a policeman with his car and robbed him of his gun and property at Rubindi. The petitioner denied this accusation, insisting that his car, No. UAJ 366E, had never knocked anyone down but the police insisted and tortured him so as to admit the said charges. He refused to admit.

 

1. The Police Officers took away 2 phones of the petitioner purchased at a total cost of Shs.1,200,000.00 and continue to hold them to this day.

 

1. The petitioner no.1 was detained incommunicado with no one allowed to come and see him for over a month in Mbarara. The petitioner no.1 initiated proceedings before the Chief Magistrates Court of Mbarara for his release on bail and on 3^rd August 2010 the Chief Magistrate ordered his release on bail. The District Police Commander refused to comply with the order and proceedings were initiated for his arrest for contempt of court. The petitioner no.1 was then ferried out of the jurisdiction of the Chief Magistrate’s Court of Mbarara to Kireka, in Kampala on 5^th August 2010.

 

1. The petitioner no.1 was detained at Kireka until 7^th September 2010 following habeas corpus proceedings for his production before the High Court of Uganda at Kampala. Without producing him before the High Court the Police released him on police bond.

 

1. The petitioner no.1 incurred over Shs.60,000,000.00 in engaging the different lawyers to procure his liberty.

 

1. To this day the police continue to retain illegally all the properties of the petitioner that they seized from him following his arrest.

 

1. The Petitioner No.2 was arrested at about 3.00am on the 2^nd July 2010 from her matrimonial home at Mbarara by 6 police officers led by Jimmy Okiror, Head of the Rapid Response Unit at Mbarara. She was taken to Mbarara Police Station. She was beaten right from arrest and during the time she spent at the police station. Prior to her arrest her captors, without a search warrant, searched her home and took away some property, including her mobile phone. Her husband, the petitioner no.1, was away at the time.

 

1. She was informed that the reason for her arrest was that her husband had knocked down a policeman, robbed his gun and money. She was ordered to produce that gun and money. She denied any knowledge of those allegations. She was held incommunicado. She was not charged with any offence and was only released on 13^th July 2010.

 

1. Upon return to her home she discovered that her husband had been arrested on the 3^rd July 2010 and taken to Mbarara Police Station. She went to the station and was not allowed to see her husband.

 

1. The actions of the police against the petitioner no. 2 were, highhanded, unlawful, oppressive, and inflicted financial loss on her and her family.

 

1. Both petitioners contend that section 25 (3) of the Police Act, Chapter 303, as well as  the foregoing actions by the police in relation to the petitioners contravened multiple provisions of the Constitution, [Articles 120 (3) (a) & (d), (5); 20; 21 (1) (2) (3); 23 (1) (2) (3) (4) (5) (a) & (b), (7); 24; 28(1) (7) (8) (9) & (12); 42; 43(1) & (2); 44 (c) and 45 for which they now seek 11 declarations; shs.2 billion as general damages, and special damages for the value of seized properties; loss of earnings, exemplary and aggravated damages and costs of this petition with certificate for two counsel.

 

1. The respondent opposed this action and contended that it did not lie as it does not involve any matter for constitutional interpretation. With regard to the facts presented by the petitioners the respondent had no answer and was content to rely on a preliminary point of law.

 

Preliminary Point of Law

 

1. Ms Goretti Arinaitwe, the learned Senior State Attorney, appearing for the respondent submitted that there was no issue in this case that called for constitutional interpretation. As a result this court did not have jurisdiction to entertain this matter. She referred to the case of Attorney General v Major General Tinyefuza Constitutional Appeal No. 1 of 1997 [unreported] as authority for this proposition.

 

1. Ms Arinaitwe further submitted that it is evident from the petition and supporting affidavits that the petitioners are seeking to enforce rights rather than raise a question for constitutional interpretation under article 137 of the Constitution. She referred us to Ismail Serugo v Kampala City Council & Anor Constitutional Appeal No. 2 of 1998.

 

1. Dr Akampumuza, learned counsel for the Petitioners, submitted that Attorney General v Major General Tinyefuza (supra) and Ismail Serugo v Kampala City Council and Anor (supra) ought to be read together with Baku Rapheal and Anor v Attorney General Constitutional Appeal No. 1 of 2003 (unreported) which in effect clarified the law on this point. +

 

1. We agree that Attorney General v Major General Tinyefuza (supra) is authority for the proposition that the constitutional court only has jurisdiction if a matter is raised under Article 137 of the Constitution. The Constitutional Court has no jurisdiction for matters arising under Article 50 of the Constitution which can be enforced by any competent court. Nevertheless where a matter is raised under article 137 the Constitutional Court is competent to offer redress.

 

1. Ismail Serugo v Kampala City Council and Anor (supra) considered the jurisdiction of the Constitutional Court under Article 137. The majority view, gleaned from the Judgments of Wambuzi, CJ, Kanyeihamba, Karokora and Mukasa- Kikonyogo, JJSC, was to the effect that the constitutional court only had jurisdiction to entertain a matter that involved the interpretation of the Constitution as against some existing law. The minority view was expressed by Mulenga, JSC, with whom Oder and Tsekooko, JJSC, agreed, was that under Article 137 (3) (b) the Constitutional Court had jurisdiction to consider whether the impugned acts or actions of any person or authority were inconsistent with or contravened the Constitution and a declaration to that effect was sought, and could offer redress, as appropriate.

 

1. As Dr Akampumuza pointed out  Baku Rapheal and Anor v Attorney General (supra) has emphatically endorsed what appeared as the minority view in Ismail Serugo v Kampala City Council (supra) with the views expressed by Mulenga JSC being cited with approval in the lead judgment of Kanyeihamba, JSC in Baku Rapheal v Attorney General (supra) (notwithstanding or in spite of his views in Ismail Serugo v Kampala City Council and Anor (supra).

 

1. In Ismail Serugo v Kampala City Council and Anor (supra) Mulenga, JSC, stated,

 

‘A petition brought under this provision, in my opinion, sufficiently discloses a cause of action, if it describes the act or omission complained of, and shows the provisions of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the act or omission, and prays for a declaration to that effect. ………………………………………………………………………………………………… In the instant case, the petition describes the acts complained of in paragraph 1(a)-(g). It indicates the provisions of the Constitution allegedly contravened by those acts. And asks fora declaration to the effect that those provisions of the Constitution were contravened and secondly for redress. In my view these averments constitute several causes of action under Article 137(3)(b) with a chance of success, at least in respect of the prayer for the declaration.’

 

1. In Baku Rapheal v Attorney General (supra) the lead judgment was delivered by the Kanyeihamba, JSC, with whom the majority of the judges agreed with. He stated in part,

 

‘In a number of cases such as Attorney General v Major General Tinyefuza, Constitutional Appeal No. 1 of 1997 (S.C.), and Serugo v Kampala City Council Constitutional Appeal No. 2 of 1998 (S.C.) this court has expressed the view that in constitutional petitions brought under Article 137 (3) of the Constitution, a cause of action is disclosed, if the petitioner alleges the act or omission complained ofand cites the provision of the Constitution which has been contravened and prays for a declaration.’

 

1. We accept that the foregoing expresses correctly the law on this point. We note that the petition states the acts or the actions of the police which are impugned. The petition cites the provisions of the Constitution which it contends are contravened by those acts or actions. It seeks declarations to that effect in addition to redress. We are satisfied that this court has jurisdiction to entertain the matter at hand.

 

1. In any case the petition, inter alia, contends that section 25(3) of the Police Act, Chapter 303, of the Laws of Uganda, in so far as it allows, the charging of a person after he / she has been illegally held beyond the forty eight (48) hours without charge is inconsistent with and / or in contravention of Article 23(1) (4) (b); 28(1) & (12); 44(c); 43 (1), (2); 20(1) (2); 21(1) (2) & (3);120 (3) (a) & (5) of the Constitution of Uganda. This clearly calls for the interpretation of the Constitution and is unassailable in jurisdictional terms.

 

1. We dismiss with costs the preliminary point of law raised against the petition.

 

The Substantive Petition

 

1. The only evidence available on the main petition are the 2 affidavits of the petitioner. The respondent has not challenged such evidence by way of other evidence to the contrary. The respondent opted not to call any evidence at all with regard to the matters in issue. In the absence of any evidence to the contrary we do accept the unchallenged evidence of the petitioners. We accept that the affidavits of the petitioners establish the facts as set out above. We shall now proceed to consider whether in light of that evidence the declarations sought may be granted or not by this court.

 

Declaration that the act of arresting and detaining your petitioners for no offence is inconsistent with and / or in contravention of Articles 120(3), (a), (d), (5); 20; 21(1), (2) & (3); 23 (1), (2), (3), (4), (5) (a) & (b) & (7); 24; 28(1), (7), (8), (9) & (12); 42; 43 (1) & (2); 44 (c) and 45 of the Constitution.

 

1. The arrest and detention of the petitioners without any charge being preferred against them within 48 hours of their arrest or even beyond the 48 hours constitutional standard before any court or a court of competent jurisdiction was an unconstitutional infringement of the fundamental right to liberty which is protected by Article 23 of the Constitution.

 

1. It states,

 

• 23. Protection of personal liberty.

 

1. the following cases—

(a) in execution of the sentence or order of a court, whether established for Uganda or another country or of an international court or tribunal in respect of a criminal offence of which that person has been convicted, or of an order of a court punishing the person for contempt of court;

(b) of any obligation imposed on that person by law;

(c) of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda;

(d) for the purpose of preventing the spread of an infectious or contagious disease;

(e)

(f) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of the care or treatment of that person or the protection of the community;

(g) into Uganda, or for the purpose of effecting the expulsion, person as a convicted prisoner from one country to another; or

(h)

 

(2) A person arrested, restricted or detained shall be kept in a place authorised by law.

 

(3) A person arrested, restricted or detained shall be informed choice.

 

(4) A person arrested or detained—

(a) for the purpose of bringing him or her before a court in execution of an order of a court; or

(b) upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda,

shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of his or her arrest.

 

(5) Where a person is restricted or detained—

(a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention;

(b) the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person; and

(c) that person shall be allowed access to medical treatment private medical treatment.

 

1. Where a person is arrested in respect of a criminal offence—

(a) the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court considers reasonable;

(b)in the case of an offence which is triable by the High Court as on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days;

(c) in the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court the High Court.

 

(7) or authority.

 

(8) Where a person is convicted and sentenced to a term of in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

 

(9) not be suspended.

 

1. Article 23 provides exceptions under which the fundamental right to liberty may be interfered with and none has been alleged by the respondent to justify the arrest and detention of the petitioners. In fact no attempt was made by the respondent to justify the actions of the police complained of. The arrest and detention of the petitioners contravened Article 23 of the Constitution.

 

1. Article 21 relates to discrimination and the facts before this court do not show that it was contravened in any way. Deprivation of liberty per se is not necessarily a contravention of Article 24 without more.

 

1. Article 24 provides,

 

‘24. Respect for human dignity and protection from inhuman treatment.

No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.’

 

1. Article 28 and Article 44 were not implicated given the fact that there was no hearing at all initiated by the respondent or the police before any court. Neither is Article 42 contravened as no administrative decision making is alleged to have taken place. Article 43 is a general limitation on the enjoyment of fundamental rights and freedoms. It has no application here. Article 45 is also not applicable as it relates to emergence of rights not enumerated in Chapter 4 of the Constitution.

 

1. We declare that the arrest and detention of the petitioners on the facts of this case contravened Article 23 of the Constitution and the police failed to comply with their obligations in this regard under Article 20 (2).

 

Other Declarations

 

1. Holding the petitioners incommunicado, and denying their next of kin or relatives and lawyers to have access to them while in detention was clearly in contravention of Article 23 (3), (5) (a) and (b).

 

1. With regard to the claim in respect of self-incrimination this does not arise as there was no trial or hearing at which the right under Article 28(11) would have been breached. There may have been attempts at preparatory acts but the same do not amount to an infringement under Article 28(11).

 

1. The assault on the petitioners during arrest and while in police custody contravened Article 24 in so far as this was clearly, not only torture, but cruel, inhuman and degrading treatment. A declaration to that effect is granted.

 

1. The police ignored the lawful orders of the Chief Magistrate of Mbarara that granted bail to the petitioner no.1 and moved him outside of the jurisdiction of that court. This was a gross violation of the petitioner no. 1’s fundamental right to liberty under Article 23 as well as Article 20(2) and Article 128 (3) in so far as all agencies of state must respect the rights of all persons and not obstruct the courts. A declaration to that effect is granted.

 

1. The petitioners’ home was searched at about 3.00AM on the 3^rd July 2010. No search warrant or order of court was produced before the search. No attempt has been made to justify this search in terms of those searches that are permitted without a search warrant. We find such search as unlawful and in contravention of Article 27 (1) (a). A declaration to that effect is granted.

 

 

1. The police seized several personal and business properties of the applicant, including a voter’s card, motor vehicle, phones, and business inventory. This property has not been released to the petitioners to this day. The seizure and retention is clearly not only a trespass to the property but a wanton interference with the petitioners’ fundamental right to own and enjoy their property under Article 26. A declaration to that effect is granted.

 

1. The petitioners seek a declaration that the act of purporting to release your 1^st Petitioner on bond when there is an order of Habeas Corpus for his unconditional release or giving to the High Court reasons for his detention is inconsistent with and or in contravention of multiple provisions of the Constitution, that is Articles 20(1) & (2); 21 (1), (2) & (3); 23 (1), (2), (4) (a) & (7); 23 (9); 28(12); 119; 120 (3) (a) & (5); and 250 (1) & (2) of the Constitution.

 

1. The petitioners have not provided any evidence of an order of the High Court of Uganda that ordered the unconditional release of the petitioner no.1. What this court has seen is a copy of an order of the High Court directing the production of the body of the Petitioner before the High Court on 8^th September 2010. This order is dated the 6^th September 2010. Apparently on learning of this order the Police released the Petitioner on 7^th September 2010on police bond.

 

1. We find nothing unconstitutional in releasing the petitioner on police bond if there was a subsisting police investigation of a crime, notwithstanding that there were habeas corpus proceedings ongoing in the High Court of Uganda at Kampala. The purpose of the habeas corpus proceedings is to determine the legality of the detention of a person and if necessary secure his or her release. Nothing more should be read in habeas corpus proceedings.

 

1. Perhaps in this rather sorry saga of police misconduct this is the nearest the police came to acting as the police ought to do or ought to have done so much earlier on in the case. We would decline to grant the declaration sought.

 

1. The petitioners seek an order of injunction against the Respondent, the Director of Public Prosecutions and the Police restraining the said parties from ‘all threatened unconstitutional actions’ by the said parties. There is no intimation of any sort that the Director of Public Prosecutions and Attorney General have threatened any unconstitutional actions. In any case the Director of Public Prosecutions is not a party to these proceedings. There is simply no merit in this claim against the Attorney General and the Director of Public Prosecutions.

 

1. We are not clear as to what further unconstitutional actions  the Police have threatened to continue with other than what we have discussed so far which in effect has been a contravention of the petitioners’ fundamental rights and freedoms. No particular police officer is cited to be issuing these threats. Injunctions ought to be directed at specific persons or office holders who ought to be parties to the proceedings in question. That is not the case here. An Injunction is a discretionary remedy and we are far from satisfied that it is the adequate remedy in the circumstances of this case.

 

Whether Section 25 (3) of the Police Act, Chapter 303is inconsistent with and / or in contravention of Articles 23 (1) (4) (b); 28(1); 44(c); 43(1) & (2); 20 (1) & (2); 21 (1) (2) & (3) and 120 (3) (a) & (5) of the Constitution of Uganda

 

1. Section 25 of the Police Act states, in part,

 

• 25.       Disposal of a person arrested by a police officer.

1. A police officer on arresting a suspect without a warrant shall produce the suspect so arrested before a magistrate’s court within forty-eight hours unless earlier released on bond.
2. Subsection (1) shall not apply to a person who is arrested in one police area and is not to be questioned within the area in which he or she was arrested until he or she is transferred to the area where the offence was committed within seven days.
3. If subsections (1) and (2) are not being complied with, any person may apply to the magistrate within twenty-four hours who shall order his or her release unless charged.
4. Where a complaint of torture of a suspect in custody is made to a magistrate, the magistrate shall order an investigation into the allegation; and if the allegation is proved to be true, the magistrate shall order for the examination and treatment of the person affected at the expense of the State, and any person responsible for the torture shall be charged.

 

1. It is the contention of Dr Akampumuza that the impugned provision violates articles 23, 28, 44(c), and 43 of the constitution. Those articles order expressly the release of a person held for more than 48 hours and the impugned provision permits the charging of a person who has been held for more than 48 hours when this is not specifically provided for in the Constitution.

 

1. Release of a person held in custody and preferment of charges against that person whether in or out of custody are 2 different things to which different provisions of the Constitution and other laws apply. The interest in the former is to secure liberty of a person while the interest of the latter is to enforce criminal law which is an aspect of protecting the rights of people to be secure in their person and property.

 

1. The fact that the state has failed in producing a person before a court of law to prefer a charge against that person does not create a defence to the possible charges against him. Nor does it entitle, per se, the person held beyond 48 hours to a stay of prosecution to possible charges against him. No authority exits for the propositions that the petitioners advance. There is nothing unconstitutional per se in preferring charges against a person that has been held for longer than 48 hours.

 

1. Of course it is to be frowned upon whenever the State fails to comply with the Constitution and there are different reliefs available depending on the violation. In extreme cases, or rather in appropriate cases, it is possible for a court to order a Stay of Prosecution where this is the only effective remedy but that will depend on the particular facts of each case. We decline to find that section 25(3) of the Police Act is unconstitutional.

 

•  

 

1. The petitioners have claimed for compensation as follows:

 

‘(j) An order for compensation of Shs.2 Billion to the Petitioners for the arbitrary and unconstitutional arrest, oppressive and highhanded actions, restriction illegal detention and brutal beatings by the Respondent.

(k) Special damages as follows:

(a) Replacement of Confiscated spare parts shs.118,648,000.00.

(b) Refund of Shs. 370,000.00 taken from the Petitioner’s mother.

(c) Shs.4,505,000.00 being money taken from the Petitioner. (d) Shs.3,000,000.00 being money for fees and necessities for the children.

(e) Shs. 2,577,000.00 being medical costs.

(f) Shs.85,000.00 being costs of confiscated clothes and shoes.

(g) Shs.2,400,000.00 being the cost of confiscated phones.

(h) Shs. 60,000,000.00 being money paid to secure release of Petitioners.

(i) Payment of Shs.6,000,000.00 per day from the date of imprisonment till payment in full being the income 1^st Petitioner continues to lose in his business.

(l) Exemplary and aggravated damages.

(m) General damages with interest of 25% from the date of illegal arrest and detention till payment in full.

(n) Costs of the Petition with a certificate of two counsel.’

 

1. It is clear that the petitioners have suffered horrendously at the hands of the police who have, as it were, disobeyed every rule in the book and brought such dishonour to law enforcement. The petitioners were arrested and detained illegally. They were tortured and beaten. They suffered physical and other harm. They have lost property and their business activities have been disrupted significantly not only because of the unlawful detention of the petitioner no.1 but the unlawful seizure of a significant part of his business inventory.

 

1. We note, however, that a claim for 2 billion shillings may be simply outrageous. No inventory has been fully established before us showing the value of the seized business stock for which a claim for Shs.118,648,000.00 has been made. We have seen some copies of receipts for spare parts but there is no proof that these spares were part of the spares that were seized. The evidence in relation to the bribe of Shs.370,000.00 is hearsay. There is a claim for Shs. 3,000,000.00 on account of fees and necessities of children. No case has been made out for the respondent to bear this cost. No evidence has been produced in respect of the value of confiscated clothes that has been claimed. The claim for loss of earnings or income from the Petitioner’s business from the date of imprisonment till payment in full at Shs.6,000,000.00 has no evidential basis before this court.

 

1. Claims for compensation of the nature that the petitioners have presented to this court, in our view, will require viva voce evidence, which is best handled by the High Court, a court of unlimited jurisdiction, rather than this court that mainly relies on affidavit evidence. For this reason we direct, in accordance with Article 137 (4) (b), that the High Court hear and determine the matter of compensation to the Petitioners.

 

1. The Petitioners had prayed for costs with a certificate for two counsel. We agree that the petitioners are entitled to costs of these proceeding. Nevertheless we are not persuaded that this is a case that required 2 counsel. Counsel has significantly cited irrelevant provisions of the law wasting the time of this court in pondering over the same.

 

•  

 

1. This petition is allowed in part, as set out hereinabove, with costs. The question of compensation for special, general, exemplary and aggravated damages is referred to the High Court of Uganda for hearing and determination.

 

Other Remarks

 

1. Before we take leave of this case we note that learned counsel for the respondent submitted an authority that had only one judgment without including the judgments of the other members of the court. This is unacceptable. A case cited should be submitted in its entirety to avoid quoting matters out of context. In any case it is the full decision of the court that is the authority and not one judgment to the exclusion of what was stated by the other members of the court or panel that decided the matter.

 

1. This case reveals significant misconduct of law enforcement officers who ought to be prosecuted in accordance with the Police Act. In order to address impunity we direct the Registrar of this court to serve copies of this judgment upon the Director of Public Prosecutions and Inspector General of Police with a direction that they investigate this matter and report to this Court not later than 6 months from the date of this judgment the results of their investigations and the actions that they have taken against the errant officers.

 

1. Lastly perhaps the time has come for legal practitioners to consider in cases of this nature adding as parties the perpetrators, and their supervisors, of impugned actions in their personal capacity so that they can face civil consequences for their wilful disregard of the fundamental rights and freedoms of the people of this country.

 

Signed, dated, and delivered at Kampala this 12^th day of  October 2015

 

 

 

 

Augustine Nshimye

Justice of Appeal

 

 

 

Eldad Mwangusya

Justice of Appeal

 

 

 

Richard Buteera

Justice of Appeal

 

 

 

 

Professor L Tibatemwa-Ekirikubinza

Justice of Appeal

 

 

 

Fredrick Egonda-Ntende

Justice of Appeal