THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CONSOLIDATED CONSTITUTIONAL PETITION NUMBERS 55 AND 56 OF 2011

1. OMAR AWADH OMAR
2. MUHAMMED HAMID SULEIMAN
3. HUSSEIN HASSAN AGAD alias HUSSEIN AGADE
4. IDRIS MAGONDU alias CHRISTOPHER MAGONDU
5. YAHYA SULEIMAN MBUTHIA
6. HABIB SULEIMAN NJOROGE
7. SULEIMAN HIJJIR NYAMANDONDO
8. MUHAMED ALI MUHAMED
9. ISA AHAMED LUYIMA
10. HASSAN HARUNA LUYIMA
11. BATEMATYO ABUBAKARI……………..PETITIONERS

VERSUS

ATTORNEY GENERAL…………………………………………RESPONDENT

 

CORAM:

HONORABLE MR. JUSTICE S B K KAVUMA JCC, AG. DCJ

HONORABLE MR. JUSTICE REMMY K KASULE JCC

HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA JCC

HONORABLE MR. JUSTICE GEOFFREY KIRYABWIRE JCC

HONORABLE JUSTICE PROFESSOR LILIAN E TIBATEMWA JCC

 

 

JUDGMENT OF THE COURT

Background

On July 11, 2010, two explosives were detonated at the Ethiopian Village Restaurant in Kabalagala, Makindye Division, and Kyadondo Rugby Club in Lugogo, Nakawa Division, Kampala City, where members of the public were watching the World Cup 2010 finals. The explosives caused several deaths, injuries and serious destruction to property. Another unexploded bomb, in the form of a suicide vest, was discovered abandoned in Makindye, another suburb of Kampala. Following the carnage, the Inspector General of Police (IGP), formed a large investigation team comprising of officers of the Uganda Police Force and tasked the Special Investigations Unit to lead the investigations.  He also sought the assistance of the Joint Anti-Terrorism Taskforce to help supply the team with Intelligence information.

Initial investigations showed that the attack on Uganda had been planned, coordinated and executed across several jurisdictions including, but not limited to, Somalia, Kenya, Tanzania, and the United Kingdom as well as in Uganda. The IGP sought and received assistance of various international and regional security agencies. The petitioners were arrested from various places in Kenya, Tanzania and Ugandaas suspects linked to the bomb attacks. They were subsequently charged with various counts of murder, terrorism, and attempted murder in the Chief Magistrates’ Court of Nakawa and were on November 30, 2010, committed by that court to the High Court for trial. On September 2011, the petitioners were indicted before the International Crimes Division of the High Court with several counts of terrorism, murder and attempted murder and remanded to Luzira Upper Prison pending their trial.The petitioners are currently facing trial in the High Courtat Kampala videCriminal Case No. 001 of 2010 Uganda v. Hassan Hussein and 18 otherson joint charges of terrorismcontrary tosections 7(1) and (2) (a) of the Anti-terrorism Act, murder and attempted murder, contrary to ss. 188 and 204 of the Penal Code Act. The petitioners’ case is before Honorable Justice Alphonse Owiny-Dollo as an ordinary High Court case.

The petitioners filed two different petitions in this court, namely Constitutional Petitions Nos. 55 and 56 of 2011. The first eight petitioners filed the former Petition while the last threefiled the latter.

At the scheduling conference, the two petitions were consolidated into one. After the consolidation of the Petitions, the 1^st, 2^nd, and 3^rdpetitioners in Constitutional Petition No. 56 of 2011 became the 9^th, 10^th and 11^th petitioners respectively and they have been referred to as such in this judgment. 

After the scheduling conference, the parties filed a joint scheduling memorandum on October 14, 2013. According to that memorandum, the 2^nd, 3^rd, 4^th, and 5^thpetitioners were handed over to the Ugandan state agents by Kenyan state agents. The 7^th and 8^th petitioners were extradited from Tanzania to Uganda. The 9^thand 11^thpetitioners were handed over by Kenya state agents to Uganda state agents. Uganda state agents arrested the 10^thpetitioner in Uganda. All the petitioners were detained in Uganda and subsequently charged with various offences and are presently remanded in Luzira prison.

The case for the petitioners

All the petitioners challenge; the manner in which they were arrested, detained and transferred to Uganda and interrogated; their treatment in detention at the Rapid Response Unit (RRU) Headquarters at Kireka and on remand in Luzira Upper Prison; and the criminal proceedings against them as illegal and unconstitutional.

The petitioners allege that; the 1^stpetitioner is a Kenyan citizen. The 2^nd petitioner is a Tanzanian citizen. The 3^rd ,4^th, 5^th, 6^th, and 8^th petitioners are Kenyan citizens. The 7^th petitioner is a Tanzanian citizen, while the 9^th, 10^th and 11^th petitioners are Ugandans.  The 1^st, 2^nd, 3^rd, 4^th, 5^thand 6^th petitioners allege that following their arrests, they were driven to the Kenya/Uganda border by Kenyan state agents and handed overto Ugandan state agents in the absence of any extradition proceedings, legal process or court order. The 7^thand 8^th petitioners were arrested in Tanzania. The former was arrested on October 4, 2010 while the latter was arrested on January 11, 2011.Both were extradited from Tanzania to Uganda without being allowed to pursue and exhaust their right of appeal.

The 9^th and the 11^th petitioners were handed over by Kenyan state agents to Ugandan state agents.  They were subjected to lengthy and unlawful pre-charge detention; airlifted through Moi International Airport, Mombasa, to Entebbe International Airport by Kenyan State agents and handed over to Ugandan State Agents in the absence of any extradition/deportation proceedings, legal process and/or court order.

The petitioners further allege that their arrests in Kenya and Tanzania and their subsequent detention in both countries respectively were not authorized by any warrant or court order nor any legally obtained deportation order.

Following their arrest, the petitioners allege that they were interrogated at various Police stations in Kenya and Tanzania, at Entebbe Police Station, at the RRU Headquarters at Kireka in Kampala, at Luzira Upper Prison, and at other unknown places in Uganda. Various security agents from Kenya, Tanzania and Uganda andthe intelligence agents of the United States of America (US) and the United Kingdom (UK) interrogated the petitioners on numerous occasions.  The petitioners were held incommunicado and were on various occasions denied access to their lawyers, doctors and next of kin.  They suffered ill-treatment at the hands of Kenyan, Ugandan, Tanzanian, US and UK intelligence and/or security agents.  For example the ill-treatment included being detained in conditions that amount to cruel, inhuman or degrading treatment or punishment and/or torture. They were furthersubjected to lengthy periods of solitary confinement, being held in overcrowded and dingy cells, being denied beddings, being provided with torn lice-infested blankets and being held incells infested with rats and /or mosquitoes and lacking natural sunlight. They were also kept in cells for long periods.

There were allegations specific to certain Petitioners. The 7^th petitioner alleged that Ugandan Police officers and their Federal Bureau of Investigation (FBI) and British collaborators tortured, tricked and forced him to sign a pre-prepared statement implicating himself and others in the July 2010 bombings in Kampala.  The 8^th petitioner alleged that while still in Tanzania, he too was forced to sign a pre-prepared statement implicating himself and other persons in the July, 2010 Kampala bombings and this was done in the presence of Ugandan police officers and a Senior Principal State Attorney. He also alleged that while in Luzira Upper Prison, the 8^th petitioner was also forced to sign another statement implicating himself and other persons in the July, 2010 Kampala bombings, and this was done in circumstances similar to those that obtained when he was forced to sign the first statement.

The 9^th and 10^th petitioners alleged that they were forced, by beatings inflicted by Ugandan Police officers and military personnel , who included the head of C.M.I., to address a press conference to confess their participation in the July, 2010 Kampala bombings. 

The petitioners contendand seek declarations that;

1. The acts of the Uganda Police, intelligence and Prison officers of receiving, detaining and the continued detention of the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 9^th, and 11^thpetitioners after they were handed over to them by Kenya state agents without an extradition order issued by a competent court in Kenya is inconsistent with and in contravention of Articles 23(1), 28(1), and 221 of the Constitution.
2. The act of the Director of Public Prosecutions (DPP) of prosecuting the 1^stto 6^th petitioners of various offences before the International Crimes Division (ICD) after they were arrested in Kenya and handed over by the Kenyan authorities to Uganda Security agents without an extradition order issued by a competent court in Kenya is inconsistent with and in contravention of Articles 23(1), 28(1), 120(5), and 126(1) of the Constitution.
3.   The acts of the Uganda Police , Prisons, and other security officers of receiving, detaining, and continuing to detain the 7^th and 8^th Petitioners after they were extradited to Uganda from Tanzania before their appeals against extradition were duly heard and determined is inconsistent with and in contravention of Articles 23(1), 28(1) and 221 of the Constitution.
4. The act of the DPP of prosecuting the 7^th and 8^th petitioners of various offences before theInternational Crimes Division (ICD) after they were extradited to Ugandan from Tanzania without being accorded the opportunity to pursue their appeals against extradition to conclusion is inconsistent with and in contravention of Articles 23(1), 28(1), 120(5) and 126(1) of the Constitution.
5. The act of the DPP of seeking to use against the 7^th and 8^th petitioners and their co-accused persons, confession statements obtained through trickery , force, and torture as set out in paragraphs 15, 16, and 17 above and detailed in their respective affidavits is inconsistent with and in contravention of Articles 28(1), 28(3)(a), 28(11), 120(5) and 126(1) of the Constitution
6. The acts of ill-treatment of the petitioners outlined in paragraphs 11, 12, and 14 of the petition and as detailed in their respective affidavits perpetuated by the Uganda Police, Intelligence and Prison officers and the FBI and British Intelligence agents are inconsistent with and in contravention of Articles 24, 28(1), 44(a), 44(c) and 221 of the Constitution.
7. That the acts of the officers of the Uganda Police, Intelligence and Prisons services of allowing intelligence/security agents from the United States of America, and the United Kingdom to interrogate, intimidate, and torture the petitioners was inconsistent with and in contravention of Articles 24, 44(a), 208, 209, 210, 212, 213, 214, 215, 216, 217, 218, and 221 of the Constitution.
8. The acts of the officers of the Uganda Police, Intelligence and Prisons officers of detaining the petitioners in ungazetted places, and of denying them access to their next of kin, lawyers, personal doctors and access to personal medical treatment were inconsistent with and in contravention of Articles 23(2), 23(5)(b), and 23(5)(c) of the Constitution.
9.   The act of the Chief Justice of setting up the International Crimes Division of the High Court of Uganda is inconsistent with and in contravention of Articles 28(1), 28(3) (a), 126(1), 129, and 133(1) of the Constitution.
10. The act of the DPP of indicting and continuing to prosecute the petitioners before the International Crimes Division is inconsistent with and in contravention of Article 28(1), 28(3) (a), 120(5), and 126(1) of the Constitution.

The petitioners seek orders for;

1. Permanently staying all pending criminal charges and proceedings against all the Petitioners in Uganda,
2. release forthwith from custody,
3. permanently prohibiting the respondent from using the processes of any courts (whether civilian or military) so as to initiate and to prosecute the petitioners for any charges what so ever; arising out of or in connection with the bombing acts in Kampala in July 2010,
4. Permanently prohibiting the respondent from using the confession statements obtained from the petitioners through trickery, force and torture in any court proceedings whatsoever,
5. the High Court of Uganda to investigate the allegations of your petitioners set out in paragraphs 11, 12, 13 and 14 above (relating to coercive interrogations, detention incommunicado, ill-treatment at the hands of various security agencies, and ill-treatment due to detention in conditions that amount to cruel, inhuman or degrading treatment or punishment and /or torture) and determine the appropriate damages payable to the petitioners
6. costs of this petition.

The case for the respondent.

The respondent’s caseis that following the July 2010 Kampala bombings, ensuing investigations by the Special Investigations Unit (SIU) of the Uganda Police yielded credible information and evidence implicating the petitioners in the planning and execution of the bomb attacks. The petitioners were lawfully arrested by police within the precincts of Kampala and Entebbe and later detained at the (RRU) headquarters in Kireka. All the interrogations that followed were done under the direction and supervision of the Uganda Police and members from the other security agencies were largely observers. Regarding the 9^th, 10^th and 11^th petitioners, the investigations were conducted in Luganda, the petitioners’ preferred choice of language with the help of interpreters, and the petitioners’ full cooperation.

The petitioners were treated in a humane manner and in accordance with the law during their arrest, detention and consequent interrogations. They were thereafter arraigned in Court, formally charged and remanded in Luzira Maximum Security Prison where they have since been treated in accordance with the Prisons Regulations.

Upon their admission to Luzira Maximum Security Prison, all the petitioners were medically examined with the view of diagnosing any health problems in order to provide appropriate treatment and counseling where necessary.  The examinations did not reveal any serious bodily injury or signs of any recent trauma on any of the petitioners. All their subsequent reported health conditions were immediately addressed with professional probity by the medical personnel at Murchison Bay Hospital and Mulago Hospital.

Issues

The parties agreed on the following issues in their joint scheduling memorandum;

1. “Whether the 1^st and 6^th petitioners in Constitutional Petition number 55 of 2011 were handed over to Ugandan state agents by Kenyan state agents
2. Subject to issue No. 1 above, whether the acts of the Uganda Police, intelligence and Prison officers of receiving detaining and continued keeping in custody of the 1^st, 2^nd, 3^rd, 4^th, 5^th, and 6^thpetitioners after they were handed over to them by the Kenyan state agents without an extradition order issued by a competent court in Kenya is inconsistent with and in contravention of Articles 23(1), 28(1) and 221 of the Constitution.
3. Whether the arrest and detention of the 1^st and 3^rd petitioners in Constitutional Petition No. 56 of 2011 by the Ugandan state agents after they were handed over by Kenyan state agents is inconsistent with and in contravention of Articles 23(1), 28(1, 120(5), and 126(1) ofthe Constitution.
4. Subject to issue No. 1, whether the act of the Director of Public Prosecutions (DPP) of prosecuting the 1^st, 2^nd, 3^rd, 4^th, 5^th, and 6^th petitioners in Constitutional Petition No.55 of 2011 of various offences after they were arrested in Kenya and handed over by the Kenyan authorities to Uganda Security agents without an extradition order issued by a competent court in Kenya is inconsistent with and in contravention of Articles 23(1), 28(1), 120(5) and 126(1)ofthe Constitution.
5. Whether the prosecution of the 9^thand 11^thpetitioners  (1^st and 3^rdin Constitutional Petition No. 56 of 2011) following their hand over by Kenyan state agents is inconsistent with and in contravention of Articles 23(1), 28(1) and (3), 120(5), 122, 126, 129, 133(1) and 221 ofthe Constitution.
6. Whether the acts of the Uganda Police, Prisons and other security officers of receiving, detaining and continuing to detain the 7^th and 8^th petitioners in Constitutional Petition No. 55 of 2011 after the said petitioners were extradited to Uganda from Tanzania without being accorded opportunity to pursue their appeals against extradition is inconsistent with and in contravention of Articles 23(1), 28(1), and 221 ofthe Constitution.
7. Whether the act of the DPP of prosecuting the 7^thand 8^thpetitioners (in Constitutional Petition No. 55 of 2011) of various offences before the International Crimes Division (ICD) after they were extradited to Uganda from Tanzania without being accorded an opportunity to pursue their appeals against extradition to conclusion is inconsistent with and in contravention of Articles 23(1), 28(1), 120(5) and 126(1) of the Constitution.
8. Whether the 7^th and 8^th petitioners made any confessions and if so, whether the confession statements made were obtained through trickery, force or torture.
9. Whether the confessions9^thand 10^thpetitioners were obtained through trickery, force or torture.
10. Subject to issues Nos. 8 and 9 above, whether the DPP is seeking to use the said confession statements in the prosecution of the petitioners and if so, whether the use of the said statements is inconsistent with and in contravention of Articles 28(1), 3(a), and (11), 120(5) and 126(1) ofthe Constitution.
11. Whether the petitioners in both Petitions suffered the alleged acts of ill treatment outlined and detailed in the petitioners’ affidavits at the hands of the Ugandan Police, intelligence, military, and prison officers; officers of FBI, and British Intelligence agents, and if so, whether such acts are inconsistent with and are in contravention of Articles 24, 28(1), 44(a) and (c) and 221 ofthe Constitution.
12. Whether officers of the Uganda police, intelligence, military and prisons services detained the petitioners illegally and/or in ungazetted places, denied them access to their next of kin, lawyers, personal doctors and access to medical treatment, and if so, whether these acts are inconsistent with and in contravention of Articles 23(2), (5), (a), (b) and (c) ofthe Constitution.
13. Whether the acts of the officers of the Uganda Police, Intelligence, and prisons services of allowing intelligence/security agents from the United States of America and the United Kingdom to interrogate the petitioners was inconsistent with and in contravention of Articles 208, 209, 210, 212, 213, 214, 215, 216, 217, 218 and 221 ofthe Constitution.
14. Whether the act of the Chief Justice of Uganda of setting up the International Crimes Division of the High Court of Uganda is inconsistent with and in contravention of Articles 28(1), (3) (a), 126(1), 129 and 133(1) ofthe Constitution.
15. Whether the DPP indicted and continues to prosecute the petitioners before the ICD, and if so, whether such  acts are inconsistent with and are in contravention of Articles 28(1), 3(a), 120(5) and 126(1) ofthe Constitution.
16. What reliefs are available to the parties?

Counsel Peter Walubiri and Alaka Caleb represented the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th and 8^th petitioners while counsel Duncan Ondimu and John Francis Onyango represented the 9^th, 10^th and 11^thpetitioners.  Counsel Patricia Mutesi (Principal State Attorney) and Batanda Gerald (Senior State Attorney) represented the Attorney General.

Resolution of the issues

In resolving the issues, we have takeninto account the affidavit evidence of both parties, the submissions of the parties and the relevant constitutional principles and jurisprudence, which we have examined issue by issue. We have also taken cognizance of the fact that this court is not a trial court and some of the issues that have been raised would be best addressed by the High Court after hearing evidence.

The counsel for the petitioner chose to address some issues jointly and others individually. Counsel Walubiri argued issue No. 1 alone, issues 2 and 4 together, issues 6 and 7, and then issues 10 to 16.  Counsel Ondimu argued issues No. 3 and 5.

Learned counsel for the respondent also chose to share their work load. Counsel Mutesi argued the issues arising from Constitutional Petition 55 while Mr. Gerald Batanda argued those arising from Constitutional Petition No. 56.

We have resolved the issues in a logical rather than numerical order.

As a preliminary matter, we note that the petitioners seek to stay proceedings, alleging abuses of their rights that are alleged to have taken place in Kenya and Tanzania, on the one hand and others alleged to have taken place in Uganda after their arrest on the other.

Issue No. 1-Whether the 1^st and 6^th petitioners were handed over to Ugandan state agents by Kenyan state agents

Counsel for the petitionersargued that while the respondent admits that the 2^nd, 3^rd, 4^th, and 5^th petitioners were handed over by Kenyan authorities to the Uganda authorities, they insist that the 1^stand 6^th petitioners were actually arrested in Uganda and not in Kenya. Counsel referred to the affidavit in support of the Petition of Mr. Omar Awadh Omar paragraphs 7 to 37, where Mr. Omar explained in detailwhat happened to him on September 17, 2010. He also referred to the affidavit of Aguma Joel, which was sworn in support of the respondent’s answer to the Petition, alleging that the 1^st petitioner was arrested while walking on the streets in Malaba. Counsel also referred to the affidavit in rejoinder of the 1^st petitioner in which he denied the allegation that he was arrested in Malaba.

He further argued that for a person to be lawfully arrested and subsequently charged, the arrest must comply with the provisions of Article 23(1) ofthe Constitution. The 1^st and 6^th petitioners were simply abducted, brought to Uganda, and denied their liberty in clear violation of Article 23(1) ofthe Constitution. Therefore, their subsequent detention and trial are all rooted into a gross constitutional violation. No evidence of their arrest in Uganda had been provided. Lawful extradition would have required compliance with the procedures set out in the Kenyan Extradition (Contiguous and Foreign Countries) Act (cap 76).

Article 23(1) of the Constitutionprovides:

“No person shall be deprived of personal liberty except in any of the following cases-

(a)…

(b)…

(c) For the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda. The emphasis is ours.

 

(d)…

(e)…

(f)…

(g) for the purpose of preventing the unlawful entry of that person into Uganda,(the emphasis is ours)or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Uganda or for the purpose of restricting that person while being conveyed through Uganda in the course of the extradition or removal of that person as a convicted prisoner from one country to another; or

(h) As may be authorized by law, in any other circumstances similar to any of the cases specified in paragraphs (a) to (g) of this clause.

Bearing the above in mind, we proceed to examine the evidence leading to the arrest of the 1^st and the 6^th petitioners, with a view to determining whether they were handed over to Ugandan state agents by Kenyan state agents.

It is not disputed that the Uganda Police through the IGP sought and received the assistance of various international and regional security agencies.This is not surprising, given the deaths of so many innocent citizens and the need for inter-state cooperation in the fight against rampart terrorism.

The 1^st petitioner

The evidence before us concerning the arrest of the 1^st petitioner is contained in the affidavit of the 1^st petitioner sworn on November 15, 2011, that of Aguma Joel, sworn on May 15, 2012 in support of the respondent’s answer to the Petition, and the 1^st petitioner’s affidavit in reply to the supplementary affidavits in support of the respondent’s answer to the Petition sworn onOctober 19, 2012. Various other Police Officers, including the, the Inspector General of Police, also challenge the 1^st petitioner’s evidence regarding the way he was treated at the RRU and in prison.

We shall presently deal with the evidence regarding the arrest of the 1^st petitioner by Ugandan Police. The treatment he received at the RRU at Kireka and in Luzira is reserved for our analysis of issue no. 2, where it is more relevant.

The summary of the 1^st petitioner’s evidence is that he is a Kenyan citizen and a businessman engaged in clearing and forwarding and the sale of motor vehicles. On several occasions, he had rendered voluntary advocacy work for the Muslim Human Rights Forum, based in Nairobi. The said Forum was engaged in advocating for the human rights of members of the Muslim Community. Following the terrorist bombings in July 2010 in Kampala, the Kenya Anti-Terrorism Police Unit (ATPU) arrested several Kenyans and handed them to Uganda authorities without extradition or other court order and this attracted condemnation from several human rights organizations including the Moslem Human Rights Forum. He joined several other activists and volunteers under the Muslim Human Rights Forum to advocate for the release of the persons arrested by the ATPU and rendered to Uganda. He was arrested in Nairobi, Kenya and not in Malaba Uganda,by ATPU officers on September 17, 2010, handcuffed and had a hood placed on his head. The hood was temporarily lifted to enable ATPU officers to identify him at a security checkpoint. At another checkpoint, he was photographed amidst threats that the ATPU officers were going to finish him off. He was not shown any warrant or court order authorizing his arrest.  He was driven to the Uganda border, a journey that took about ten hours. He was denied food until 7.10pm. The journey stopped at Malaba police station, where his Kenya policehandcuffs were removed and replaced with those of Ugandan security officers. His hood was also removed. From there, he was transferred to the RRU Headquarters of the Uganda Police Force at Kireka.

One, Geoffrey Kay, an American citizen and a psychologist also swore an affidavit on August 3, 2013 in support of the Petition of the 1^st petitioner. He stated that he inquired of the American Department of Justice what assistance was being rendered to Uganda, in light of the bombings, and with regard to what role FBI played in the arrest of the 1^st petitioner. The US State Department of Justice informed him that the 1^st petitioner was detained in Kenya and handed over from there to the Ugandan authorities.

For the respondent, several Ugandan Police officers swore affidavits to controvert the 1^stpetitioners’ evidence. Concerning the arrest of the 1^stpetitioner, Aguma Joel, a Senior Superintendent of Police,in his affidavit already mentioned stated that at the timeof the events of the July 2010 bombings in Kampala, he was the Regional Police Commander Eastern Region. Following the bombings, all Police personnel countrywide were placed on high alert to identify and arrest persons involved in the bombings as well as to prevent such incidents from occurring within their areas of operation. He considered certain areas under his jurisdiction sensitive and these included the Uganda/Kenya border posts i.e. Lwakhakha, Malaba and Busia. He took command of the said posts as he had received intelligence reports of suspected terrorists intending to cross into Uganda from Kenya, with the aim of detonating further explosives. 

On September 18, 2010, while he was in office, he was informed by the officer in charge, Malaba police post over a radio call that his men had arrested and detained a Kenyan national who did not have valid travel or identification documents. He immediately rushed to Malaba police post and saw the suspect who identified himself as Omar Awadh Omar, the 1^st petitioner. He arrested and detained him pending further investigations. Nixon Agasiirwe, the then head of operations, RRU HeadquartersKireka, later informed him that investigations had established that the 1^st petitioner was wanted as a suspect in connection with the Kampala bombings. He forwarded the 1^st petitioner to the RRU headquarters for further management. He denied allegations by the 1^st and 6^th petitioners that they were handed over to the Uganda Police by Kenya police officers. He also denied the allegations of the 1^st petitioner that Uganda Police tied him using plastic handcuffs and asserted, that Uganda Police does not use plastic handcuffs but rather metallic ones.

Firstly, we consider the evidence of the American journalist, Geoffrey Kay. We accept the observation of counsel for the respondent that the United States (US) State Department did not and could not speak for the UgandaGovernment. We further note that the communication from the US State Departmentis hearsay evidence with no probative value and we accordingly reject it.

Secondly, weobserve that the Kenya Police, through oneNo. 57051 IP Newton Mwiti attached to the ATPU, denied arresting the 1^st petitioner (see annexure B to the affidavit of the 1^st petitioner In the matter of an application for directions in the nature of Harbeas Corpus; Kenya High Court Criminal Application No 514 of 2010). We see no reason why Kenya Police would deny involvement in the arrest of the 1^st petitioner.

Elly Womanya, a Senior Commissioner of Police (SCP) with the Uganda Police readily admits receiving from Kenyan Police the 2^nd to the 5^th petitioners. Moses Sakira(SCP)also readily admitted receiving the 3^rd and the 4^th petitioners on July 27, 2010 in Uganda from the Kenya Police.  The Uganda Police further admits receiving the 9^th and the 11^th petitioners from the Kenya Police.

In the circumstances, we have no reason to doubt the evidence of Aguma Joel that he arrested the 1^st petitioner at Malaba. We therefore conclude that the 1^st petitioner was arrested at Malaba in the circumstances described by Aguma Joel. 

The 6^th petitioner

With regard to the 6^th petitioner, his version was that he was illegally arrested in Kenya and transferred to Uganda where he was handed over to Uganda authorities. Before his arrest, he was a journalist working as a presenter of talk show programs and as a news reader in English and Swahili at a Radio Station called Radio Salama in Kenya. On September 4, 2010, about 10 Police Officers arrested him from his work place in Mombasa in the presence of his boss, one NurdinHaiji and his workmates. He was immediately handcuffed. He was not informed ofthe reason of his arrest. He was taken to Mombasa Port Police Station and then to Nairobi ATPU Headquarters while still handcuffed. At ATPU, he was intimidated and tortured by the Commandant of the ATPU, one Nicholas Kamwende. Various officers, including a Ugandan police officer, subsequently interrogated him for about three hours. During the interrogation, the officers abused, insulted and slapped him.  After the interrogation, he was driven handcuffed, shackled and hooded to the Uganda/Kenyan border at Malaba and then to the RRU at Kireka Kampala. There were no proceedings in any competent court in Kenya seeking his deportation or extradition to Uganda.

A Kenya Police officer, one No. 232737 Charles Ogeto of the ATPUdenied the allegationsby the 6^th petitioner that he was arrested, detained and subsequently renditioned to Uganda. This was in his affidavit sworn in reply in court proceedings instituted in the High Court of Kenya Nairobi by the sister of the 6^th petitioner, one Aisha Suleiman for a writ of habeas corpus  vide Miscellaneous Criminal Application No. 470 of 2010In the matter of an application for directions in the nature of habeas corpus between Aisha Sulaiman (on behalf of the subject: Habib Suleiman Njoroge) versus The Commissioner of Police, the Commandant of the Anti-Terrorism Police Unit, and the Attorney General (see annexure B to the affidavit of the 6^th petitioner in support of the Petition).

The respondent’s evidence, given through Aguma Joel, is that the allegations by the 6^th petitioner that he was handed over to UgandPolice by the Kenya Police officers, are not true. On September 6, 2010, while he was on patrol at Malaba, he came across a male adult walking along Malaba Street and on inquiring from the suspect; he identified himself as Habib Sulaiman Njoroge, the 6^th petitioner of Kenyan nationality. However, he had no valid identifying information or travel documentation. Aguma immediately arrested him on suspicion that he was illegally in Uganda and could be a suspected terrorist. He detained him and informed Police Headquarters of his arrest. Police Headquarters directed him to forward the suspect to Kampala for further investigations and management. He dispatched the 6^th petitioner to the RRU Headquarters in Kireka for further management.

We have closely scrutinized the above evidence. We have already noted that certain Ugandan Police officers, namely Moses Sakira, SCP and Elly Womanya, SCP admitted in their supplementary affidavits in support of the Answer to the Petition to having received the 2^nd, 3^rd, 4^th, 5^th, 9^th and 11^thpetitioners from the Kenyan Police.

We see no reason why the Uganda Police officers should deny receiving the 6^th petitioner given that they readily admit receiving other petitioners from the Kenyan Police. UgandaPolice action in arresting the 6^thpetitioner is not farfetched and is understandable, given that twin bombings had just occurred in Uganda, in which numerous people lost their lives and others were seriously injured and that Police was on high alert. Anyone walking around without proper identification would readily arouse suspicion.

We also note that under Article 23(1) (c)of the Constitution,a person may be detained on suspicion that he has committed or is about to commit a criminal offence.  We are of the view that in the aftermath of the bombings and the circumstances in which Aguma Joel SSP found the petitioner, he was justified in taking the action he tookunder Article 23(1). Hissuspicion of the 6^thpetitioner was justifiably aroused as he did not have valid identifying information or travel documentation.

As such, he was entitled to arresting him on suspicion that he had committed or was about to commit a crime in Uganda. We therefore conclude that the Uganda Police lawfully arrested the 6th petitionerat Malaba and that their action in doing so did not contravene Article 23(1) ofthe Constitution. The first issue is, therefore, answered in the negative.

Issues Nos. 2, 3, 6, 11, 12 and 13 relating to the arrest, detention and alleged ill-treatment of the Petitioners 

We have chosen to combine the discussion on issues numbers 2, 3, 6, 11, 12 and 13 as we consider that they are interrelated. In essence, the petitioners challenge the constitutionality of their receipt and arrestby the Uganda Police; their detention pre and post remand, whether the places where they were detained were gazetted; their continued detention, alleged ill-treatment or torture while in detention at the hands of the Uganda Police, intelligence, military, prison officers, FBI, and British agents; and their prosecution. If constitutional infringements were committed thereby, they implore this court to stay the criminal proceedings pending in the High Court against the petitioners as such alleged unconstitutional acts render their trial unfair.

We shall therefore consider separately each of the above aspects but before we do so, it is necessary to examine the arguments of counsel in that regard.

Learned counsel for the petitioners argued that the law in force is that a fugitive criminal can only be brought intothejurisdiction through a lawful extradition process.  The rendition of the 1^st to the 6^thpetitioners not only contravenedArticles 23(1)and 221 but it was also a violation of Article 28(1) of the Constitution which protects the right to fair trial, a non-derogable right under Article 44 (c) of the Constitution. There could be no fair trial if an accused person in the first instance was brought before the trial court through an arbitrary, illegal and unconstitutional process.

The unlawful rendition and continued detention and prosecution of thepetitioners violatesArticle 126 (1) of the Constitution.This article enjoins any court in Uganda to prevent abuse of its process. It also amounts to a violation of several international treaties and covenants, which have condemned arbitrary detention and imprisonment without due process of law. He cited Article 6 of theAfrican Charter on Human and People’s Rights (ACHPR) and Article 9 of the International Covenant on Civil and Political Rights.

Counselsubmitted that all investigations and arrests and the bringing of the petitioners into the Uganda jurisdiction were done at the behest of the Uganda Police with the involvement of Uganda Police and security agencies from other countries.

In conclusion, counsel submitted that Article 23(1) ofthe Constitutionwas violated. The petitioners’ liberty was contravened. The police, intelligence agencies, and the prison officers who participated in the illegal arrest and detention of the petitioners violated Article 221 ofthe Constitution that commands them to observe and respect human rights and freedoms in the performance of their functions. Illegalities are the foundation of the prosecution and this militates against fair trial under the said Article 28(1). Counsel also submitted that by continuing to prosecute the petitioners, the DPP contravened Article 120(5) that requires him to prevent abuse of the legal process . A fugitive criminal could only be brought into jurisdiction through a lawful extradition process. The prosecution also contravened Article 126(1)of the constitutionthat obliges courts to exercise their jurisdiction in conformity with the law.Counsel prayed that this Court holds that all the above mentioned articles were contravened and resolves this issue in favor of the petitioners.

Counsel for the respondent submitted; that the acts of receiving, detaining and keeping the petitioners after they were handed over to the Ugandan Police without an extradition order was consistent with Article 23(1) (c) ofthe Constitution which authorizes deprivation of liberty of a person on reasonable suspicion that they have committed an offence with the intention of bringing him/her before a court.

The respondent did not dispute the fact that the 2^nd to 5^th petitioners were transferred by the Kenya Police from Kenya to Uganda and were handed over to Uganda Police. However, counsel for respondent argued that Uganda Police did not participate in the transfer, it only received the petitioners.  The act of surrendering a person from one country to another is an official act of state andis covered under the principle of sovereign immunity. This Court could not inquire into the aspect of legality.  Courts of one country could not sit in judgment over the acts of another country. This court could only inquire into whether Uganda agents violated Ugandan laws within Uganda.

Once the petitioners were in Uganda, they became subject to the Constitution.Section 23 of the Police Actprovides that a police officer may without a court order or warrant arrest a person he has reasonable cause to suspect that he/she committed offences. She also cited Section10 ofthe Criminal Procedure Actas being to the same effect. 

Counsel relied on the Zimbabwean case of Beahan v State [1992] LRC (Crim) and argued that it established the principle that if the prosecuting state has not exercised any force in the territory of the surrendering state then any irregularity in the procedure of the surrendering state is not a bar to prosecution because the sovereignty of the surrendering state has not been violated. UgandaPolice were not connected to the abuse of court process. No inconsistency was established with the saidArticle 28.  The act of handing someone to Uganda in violation of the laws of another country does not take away Uganda’s jurisdiction to try them.

She also argued that the American case of Ker versus Illinois 119 U. S. 436 laid down the principle that forcible abduction or mere irregularity in the manner in which a person is brought into custody of the law is not sufficient reason to discharge such person if he/she has charges to answer before a court that has jurisdiction to try him unless he can show that his right to a fair trial (due process) guaranteed by the American Constitution was affected.  She relied on another American case of US v. Dr. Humberto Alvarez-Machain Supreme Court of the United States 31 ILM 902 (1992) for the principle that one can get a fair trial even when one has been forcibly abducted and that nothing in the American Constitution requires a court to permit a person who has been convicted to escape justice just because he was brought to trial against his will.  The only exception is where there has been diplomatic protest. In such a situation, courts will decline to exercise their jurisdiction. The US position closely reflected the decision of this court in the case of Dr. Kiiza Besigye and Others versus Attorney General’Constitutional Petition No. 7 of 2007.

Counsel for the respondent further argued that the 9^th petitioner stated in his affidavit that he was deported from Kenya, following his arrest and detention by Kenyan authorities. So did the 11^th petitioner. The Uganda authorities arrested the two petitioners following their deportation and were not answerable to what took place in Kenya. 

Moreover, under Article 124 of the Treaty establishing the East African Community (EAC), the Partner States agreed to foster and maintain an atmosphere that is conducive to peace and security through co-operation and consultations on issues pertaining to peace and security of the Partner States. To that end, they agreed under Article 124(5)of the EAC Treaty to enhance co-operation in the handling of cross border crime, provision of mutual assistance in criminal matters including the arrest and repatriation of fugitive offenders and the exchange of information on national mechanisms for combating criminal activities.

On the allegation that the UgandaPolice and Prisons violated the petitioners’ right to liberty enshrined in Articles 23, 28 and 221 of the Constitution,there was no contravention because the detention and the remand custody were lawful. Counsel prayed that we find that the act of receiving, detaining and keeping in custody of the petitioners after they were handed over to Uganda authorities without an extradition order was not inconsistent with the said articles of the Constitution.

We reproduce below all the articles of the Constitutionand the sections of the respective statutes relied on.

Article 23. Protection of personal liberty

1. “No person shall be deprived of personal liberty except in any of the following cases_
2. …
3. A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice
4. A person arrested or detained_

(b) upon a 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

Article 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.

Article 28. Right to a fair hearing

1. In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.
2. …
3. Every person who is charged with a criminal offence shall_

1. Be presumed to be innocent until proved guilty or until that person has pleaded guilty;
2. …

Article 44. Prohibition of derogation from particular human rights and freedoms

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms_

1. Freedom from torture and cruel, inhuman or degrading treatment or punishment;
2. Freedom from slavery or servitude;
3. The right to fair hearing;
4. …

Article 120. Director of Public Prosecutions

1. There shall be a Director of Public Prosecutions appointed by the President on the recommendation of the Public Service Commission and with the approval of Parliament.
2. …
3. …
4. …
5. In exercising his or her powers under this article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of legal process.
6. …
7. …

Article 126. Exercise of judicial power

1. Judicial power is derived from the people and shall be exercised by the courts established under the Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.
2. …

Article 221. Security organizations to observe human rights

It shall be the duty of the Uganda People’s Defense Forces and any other armed force established in Uganda, the Uganda Police Force and any other police force, the Uganda Prisons Service, all intelligence services and the National Security Council to observe and respect human rights and freedoms in the performance of their functions.

Section 10 of the Criminal Procedure Act provides;

Any police officer may, without an order from a magistrate and without a warrant, arrest_

1. Any person whom he or she suspects upon reasonable grounds of having committed a cognizable offence, an offence under any of the provisions of Chapter XVI of the Penal Code Act or any offence for which under any law provision is made for arrest without warrant.
2. …
3.  …
4. …
5. Any person who he or she finds in any highway, yard or other place during the night and whom he or she suspects upon reasonable grounds of having committed or being about to commit a felony;
6. …
7. …
8. …
9. …

Section 23 of the Police Act provides;

1. 23. Arrest without a warrant
2. (1)  A police officer may, without a court order and without a warrant arrest a person if he or she has reasonable cause to suspect that the person has committed or is about to commit an arrestable offence.

Article 124. East African Community Treaty

1. The Partner States agree that peace and security are pre-requisites to social and economic development within the Community and vital to the achievement of the objectives of the Community. In this regard, the Partner States agree to foster and maintain an atmosphere that is conducive to peace and security through co-operation and consultations on issues pertaining to peace and security of the Partner States with a view to prevention, better management and resolution of disputes and conflicts between them.
2. The Partner States undertake to promote and maintain good neighborliness as a basis for promoting peace and security within the Community.
3. The Partner States shall evolve and establish regional disaster management mechanisms which shall harmonize training operations, technical co-operation and support in this area.
4. The Partner States undertake to establish common mechanisms for the management of refugees.
5. The Partner states agree to enhance co-operation in the handling of cross border crime, provision of mutual assistance in criminal matters including the arrest and repatriation of fugitive offenders and the exchange of information on national mechanisms for combating criminal activities. To this end the Partner States undertake to adopt the following measures for maintaining and promoting security in their territories to:

1. Enhance the exchange of criminal intelligence and other security information between the Partner States’ central criminal intelligence information centres;
2. Enhance joint operations such as hot pursuit of criminals and joint patrols to promote border security;
3. Establish common communications facilities for border security;
4. Adopt the United Nations model law on mutual assistance on criminal matters;
5. Conclude a Protocol on Combating Illicit Drug Trafficking;
6. Enhance the exchange of visits by security authorities;
7. Exchange training programs for security personnel; and
8. Establish common mechanisms for the management of refugees

1. The Partner States undertake to co-operate in reviewing the region’s security particularly on the threat of terrorism and formulate security measures to combat terrorism (emphasis added by Counsel for the Respondent).

The East African Community Act 2002

WHEREAS the Treaty for the establishment of the East African Community, which is set out in the Schedule to, this Act, was signed in Arusha, Tanzania on the 30^th day of November, 1999 on behalf of the Governments of the United Republic of Tanzania, the Republic of Uganda and the Republic of Kenya;

AND WHEREAS the Parliament of the Republic of Uganda ratified the Treaty on the 27^th day of April, 2000, in accordance with Article 123 of the Constitution, section 3(b)(ii) of the Ratification of Treaties Ac, 1998 and article 152 of the Treaty;

AND whereas it is expedient to give the force of law to the Treaty in Uganda;

Now therefore be it enacted by Parliament as follows;

1. This Act may be cited as the East African Community Act, 2002 and shall come into operation on such date as the Minister may, by statutory instrument appoint.
2. …
3. (I). The Treaty as set out in the Schedule to this Act shall have the force of law in Uganda.

Article 6. International Covenant on Civil and Political Rights (ICCPR)

Every individual shall have the right to liberty and to the security of his person.  No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular no one may be arbitrarily arrested or detained.

Article 9. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR)

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”

We shall bear the above in mind in the ensuing discussion. We observe that the provisions of the ICCPR and AFCHPR (supra) are largely echoed in the constitutional provisions in Articles 23 regarding the protection of personal liberty and Article 24 relating to respect for human dignity and protection from inhuman treatment.

• Receipt/Arrest and initial detention of the Petitioners by the Uganda Police officers beyond48 hours

On the prohibition of detention beyond 48 hours, the applicable law isArticle 23(4)(b) Constitution.It is also necessary to refer to Article 20(2) of the Constitution. They provide;

Article 20(2)

“The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.”

Article 23(3)provides:

A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

 

Article 23(4)

A person arrested or detained_

1. …
2. 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”

We note that the 1^st petitioner was arrested in Uganda on September 18, 2010. He was charged in the Nakawa Chief Magistrate’s Court on Monday 20^th September, 2010. He was committed for trial on November 30, 2010 and was indicted before the High Court on November 13, 14 and 15, 2010.  The 1^st petitioner therefore spent two days in pre remand detention prior to being charged which was within the 48 hours limit.

The 2^nd petitioner was arrested in Uganda on August 14, 2010. He was produced in the Chief Magistrate’s Court of Nakawa on August 17, 2010, charged along with others, and remanded.   He therefore spent 3 days in pre-remand custody.

The 3^rd and the 4^th petitioners were handed by the Kenya Police into the custody of the Uganda Police as suspects in the planning and execution of the July 10, 2010 bomb attacks in Kampala on July 27, 2010.  They were charged in the Chief Magistrate’s Court of Nakawa on 30 July 2010.  They spent 3 days in pre-remand detention.

The 5^th petitioner was handed to the Ugandan Police by the Kenyan Police on August 26, 2010, and was immediately arrested as a suspect in the bomb attacks. He claims to have been at the RRU for two and half months before he was taken to Luzira Upper Prison. He does not mention dates.

The 6th petitioner was arrested on September 5, 2010.  He was taken to the Chief Magistrate’s Court of Nakawa and charged on 20 September 2010. He was detained for 14 days before being charged.

The application to extradite the 7^th petitioner was heard and granted in Tanzania on February 21, 2011. He was extradited on the same day to Uganda and was immediately arrested. He was indicted in the High Court on September 12, 2011 and remanded to Luzira Upper Prison.  It is not clear from his affidavit when he was charged in the Chief Magistrate’s Court.

The 8^th petitioner was handed to Uganda Police by Tanzanian Police on June 30, 2011, following an extradition order in Tanzania. He was charged before the Chief Magistrate’s Court of Nakawa on July 8, 2011 and committed for trial between September 12 and 14, 2011. He spent 8 days in pre remand detention before he was charged.

The 9^th petitioner was deported to Uganda on August 8, 2010.  He was handed by the Kenya Police to Ugandan Police on August 9, 2010 and was immediately arrested.  He was charged in the Chief Magistrate’s Court of Nakawa either on August 16 or 17.  He spent between 7 and 8 days in pre remand detention before being charged.

The 10^th petitioner was arrested in Uganda on August 2, 2010. He was charged either on August 16, or 17, 2010 in the Chief Magistrate’s Court of Nakawa. He spent 14 or 15 days in pre-remand detention before being charged.

The 11^th petitioner was deported from Kenya to Uganda on August 8, 2010 and arrested in Uganda on the same date. He was charged before the Chief Magistrate’s Court of Nakawa on August 16 or 17, 2010. His pre remand detention was 8 or 9 days.

What the above evidence has established with certainty is that the petitioners were kept for various periods, at the RRU and at other places, before they were produced and charged in the Chief Magistrate’s Court of Nakawa; and remanded in the RRU and in Luzira. Some were clearly detained beyond the 48 hour requirement, thus infringing the Constitutional provisions enshrined Articles 20(2), 23(3) and (4).

We consider that the issue of what is appropriate compensation,if any,in respect of the detention of the petitioners beyond 48 hours is a matter for determination after hearing the parties. In the particular circumstances of this case, it appears to us that it is the High Court that should hear evidence and determine the appropriate compensation, if any, under Article 137(4) which provides:

Article 137(4)

“Where upon determination of the petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may_

1. Grant an order of redress; or
2. Refer the matter to the High Court to investigate and determine the appropriate redress.”

We accordingly refer this matter to the High Court for determination. We also wish to state that this breach/infringement is remediable under Article 50 of the Constitution and on its own, is not sufficient ground to stay the criminal trial of the petitioners in the High Court in the circumstances of this case, and we so hold.

• alleged mistreatment after arrest pre and post remand

Regarding the alleged treatment of the petitioners in detention before they appeared in court and after remand, counsel for the petitioner submitted that they were subjected to inhuman and degrading treatment, a non-derogable right under Article 44(a) of the Constitution. The mistreatment involved torture, intimidation, denial of a litany of rights to the petitioners contrary toArticles 24, 28(1), 23(2), 23(5) (a) and (b) and 23(5) (c) ofthe Constitution,as exemplified by the petitioners’ various affidavits. Regarding the law, counsel relied on the petitioners’ conferencing notes.

Counsel further submitted that on the participation of foreign security and intelligence agencies, this matter should be taken very seriously, given the troubled history of this country and the problems it had with the operations and behavior of security agencies. He relied on the case of Dr. Kiiza Besigye and others v. Attorney General Constitutional Petition No. 7 of 2007 and submitted that the treatment of the petitioners warranted their discharge or even acquittal.

While we agree with the principle laid down in the case of Dr. Kiiza Besigye and others v. Attorney (supra)that this court can stay proceedings if the abuse of process would mean that no fair trial can result, we nevertheless consider that the circumstances in that case were different and can be distinguishable from the instant case. The petitioners were civilians who were accused of acts of treason and misprision of treason committed between 2001 and 2004.  The petitioners, together with 12 other co-accused who had applied and been granted amnesty, were committed to the High Court for trial on the charges of treason and misprision of treason. The High Court subsequently granted eleven of the petitioners bail.

In an effort to prevent the release of the bailed petitioners on bail as ordered by the High Court, various officials, authorities and agencies of the State committed certain acts. They deliberately and systematically carried out two armed sieges and invasions of the High Court and assaulted a journalist, the petitioners as well as some counsel for the petitioners.  They charged the petitioners with terrorism and unlawful possession of firearms in another criminal case before the General Court Martial.  They detained the bailed petitioners in Luzira Maximum Prison. They continued the proceedings in the General Court Martial despite this Court’s decision that they were unconstitutional.  They disobeyed production warrants in respect of the bailed petitioners issued by the High Court.  High ranking state officials issued statements presupposing that the petitioners were guilty of grave offences.  The petitioners were arrested and charged at different times and in different courts with treason, unlawful possession of firearms, terrorism, rape and murder arising out of similar facts.  This entailed manipulation of the process of civilian and military courts in order to deprive the petitioners their rights to liberty and a fair trial. Despite several orders of the High Court and the Constitutional Court that the petitioners should be released on bail, most of them were still unlawfully on remand at the time their Petition was filed.

This Court noted in that case that the evidence was a harrowing account of the arrest and detention of the petitioners, their struggle to obtain bail from the High Court, their experience with two military sieges of the High Court and their then pending trials in some of those courts.  It is apparent that the abuse in that case involved the Uganda Police and Uganda Armed forces directly invading the court premises with impunity during the trial and causing mayhem, including contempt of court, and willful disobedience of court orders. These allegations were not controverted by the State in that case. The full participation and of culpability of the Police, Intelligence agencies and the military personnel from the Army was clearly identifiable, prolonged and aggravated indeed and was not in question.  The Judges were not spared the intimidation.  Their conduct was clearly unconstitutional. 

In these circumstances, this Court accepted the petitioner’s contention in that case that their lengthy and unlawful detention and treatment by the agents of the State caused the petitioners physical and psychological torture. The trial of the petitioners was therefore stayed as no justice could be obtained in those circumstances.

In the instant case, any court would indeed find disgraceful and regrettable, and a clear infringement of the Constitution, the conditions in which the petitioners allege to have been detained pre and post remand, if proved to true. We are aware that in a petition filed under Article 137 of the Constitution, like the present one; this court may grant relief for alleged breaches of human rights, if proven. The Supreme Court has stated that much in the case of Ismail Serugo v. KCC and Attorney General Supreme Court Constitutional Appeal No. 2 of 1997 where it held that the Constitutional Court is a competent court for the purposes of Article 50 to which an application for redress may be made when such right or freedom is infringed or threatened, in the context of a Petition under Article 137 principally for the interpretation of the Constitutionas it is with the present case.  However, this redress can only be granted where the court considers that there is need for such redress.

That Article provides;

“137. Questions as to the interpretation of the Constitution

(1)  Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as a Constitutional Court.

(4)  Where upon determination of the petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may_

(a) Grant an order of redress; or

(b) Refer the matter to the High Court to investigate and determine the appropriate redress”

In the instant case, what is on record are allegations made by the petitioners that are controverted by the State. Most of the complaints in the allegations are general to all the petitioners. They may be summarized as follows. The manner of arrest, (shackled, handcuffed and in some cases hooded, threatened) and detained (long interrogations by among others FBI and other foreign agents in the absence or presence of Uganda Police officers; threats, insults, torture during interrogation, lack of access to lawyers; lack of access to medicare; poor feeding; lack of hygiene; length of detention at RRU. On the conditions of detention at Luzira Upper Prison, the petitioners complained of lack of visitation; duration of the interrogations; the alleged threats and coercion by the interrogators; denial of the right to practice religion;  length of lock up time in Luzira; and lack of access to lawyers among other complaints.

However, some allegations are unique to some petitioners; for example, it is only the 1^st petitioner who alleged interrogators took his DNA for testing. He stated that he was taken to the condemned section of Luzira prison and told he would also die. The 3^rd, 7^thand 8^thpetitioners allege that they were forced to sign statements on threats of death and harm to their families.  The 7^th and 8^th petitioners alleged that one of the Police officers in Uganda participated in their rendition from their country of origin. The 9^th and 10^th petitioners were forced to sign pre-prepared statements after beatings.

The respondent’s evidence as gathered from the various Police and Prison Officers regarding the conditions of detention at RRU in Kireka shows;that the RRU has three rooms for male suspects. The rooms which were constructed only three years previously could comfortably accommodate 30 suspects.  They were adequately ventilated and are each equipped with running water, a flashing toilet and a shower room inside. 

All suspects were fed on well cooked meals of posho and beans accompanied with boiled water, and had porridge for breakfast.  In the event that a suspect has any special dietary requirements, these are usually provided as much as the resources permit. 

There were no lice in the cells and none was reported by the petitioners.  All suspects detained at the RRU were provided with beds.

None of the interrogating officers carried a gun to any interrogation session of any petitioner.   All interrogation sessions were coordinated, led and supervised by the Special Investigations Unit of the Uganda Police Force.  They were carried out under the supervision of the Uganda Police.  None of the petitioners was verbally abused or insulted, threatened, or physically assaulted/tortured by any Ugandan or American officers or any one.  None of the petitioners was interrogated by foreign agents in the absence of Uganda Police personnel.  The stories about torture, mistreatment, and forced confessions were manufactured by the petitioners, as is usual with terrorist suspects.  The petitioners were neither interrogated for a whole day.  Their interrogations lasted approximately one hour at a time, involved putting questions to them in an ordinary and civil manner and taking note of their responses.

The interrogations were conducted during day time in an open tent in the RRU compound.  The petitioners were interrogated separately and were not shackled or handcuffed during joint interrogations as they did not individually pose a security threat in such a scenario.  Each of the petitioners was given a plastic chair to sit on. 

The petitioners were informed of their right to a lawyer of their choice but they chose to proceed with the interrogation without legal representation and spoke freely and responded to all questions.  All petitioners detained at the RRU headquarters were allowed visits during visitation times.  Uganda Police did not use any plastic handcuffs but rather metallic ones.

No petitioner was denied the right to practice his religion or receive medical attention.  Interrogation sessions were adjourned routinely at the request of the petitioners to allow them to do their prayers.

No petitioner was coerced to sign any documents or to implicate himself or others.

We are of the considered view that the matter of the conditions of the detention of the petitioners before and after remand following their arrest in Uganda can best be investigatedby the High Court as a trial court which can hear evidence, observe the demeanor of the witnesses and determine the same under Article 50 of the Constitution. Therefore, in accordance with Article 137(4) ofthe Constitution, this matter is accordingly referred to the High Court for determination.

• Continued detention of the Petitioners in Luzira.

The trial of the petitioners was scheduled to begin November 15, 2011. After being charged in court, the petitioners were remanded in Luzira by the Chief Magistrate’s Court of Nakawa. We find that after remand, the detention of the petitioners ceased to be unlawful. 

On the delay in proceeding with the trial, the two Petitions were filed on November 15, 2011 and November 21, 2011, respectively.  The main reason the trial has delayed is that the High Court could not proceed with the trial in light of this Petition as provided by the constitution in Article 137(5).

In the circumstances, we conclude that the receipt and detention of the petitioners by Prison authorities or by the RRU, after they were remanded by a court warrant is lawful and does not constitute a violation of Articles 23(1), 28(1), and 221 of the Constitution.  We further conclude that their continued detention is legal and constitutional. Issues No. 2, 3, 6, 11 12 and 13 are therefore to a large extent resolved in the negative and only partly resolved in the positive.

Issues Nos. 8,9 and 10- whether the 7th, 8th, 9^th, and 10^th Petitioners made any confessions and if so, whether the confession statements were obtained through trickery, force or torture;

The 8^th and the 9^th issues concern the confession statements allegedly made by the 7^th, the 8^th,the 9^th and the 10^thpetitioners. We have been requested to determine the conditions in which the said petitioners made their respective confessions and to declare that they contravene the Constitution. Clearly, in our view the duty of establishing whether a confessional statement was freely made lies with a trial court following a well established procedure commonly referred to as a trial within a trial.

This matter is therefore left to the High Court to consider and determine.Issues Nos. 8, 9 and 10 are therefore resolved in the negative.

Issue No.15-Challenge to the prosecution of the petitioners in the ICD

Uncontroverted evidence by the Senior Principal State Attorney in the Directorate of Public Prosecution, Ms Joan Kagezi firmly established that the petitioners’ case is before Honorable Justice Alphonse Owiny Dollo in the High Court as an ordinary High Court case videHigh Court Criminal Case No. 001 of 2010 Uganda v. Hussein Hassan and 14 others. Issue no. 15 is therefore resolved in the negative.

Issue No.14 -Challenge to the establishment of the International Crimes Division (ICD)

Counsel for the petitioners argued as follows:

The Honorable Chief Justice (C.J) did not have legal or constitutional powers or authority to set up this special court.  Courts of Judicature in Uganda are provided for under Article 129 of the Constitution. They are constituted by acts of Parliament. The High Court is set up by article 138 of the Constitution. The International Crimes Division (ICD) as a specialized court, is not one of the courts envisaged under Article 138 of the Constitution. It is a special court pursuant to the Juba Peace agreement. It is only Parliament that can make provision for the jurisdiction and procedure of the courts. The act of the CJ in conferring jurisdiction to this division is unconstitutional.

The issue of panels or coram is a question of law. For example Articles 131(1) and (2) of the Constitutionset out the corum for the Supreme Court i.e. not less than five members on appeals but if it is an appeal on a Constitutional matter, it is the full bench. This article was reinforced by section 8 of the Judicature Act, which provides for all the powers of a single justice in interlocutory matters and for a reference to three justices as a way of appeal. Article 135 provides for the corum of the Court of Appeal. The corum for ordinary appeals is not less than three justices whilefor constitutional matters, it must be a bench of at least 5 Justices.  Section 12(1) of the Judicature Act prescribes matters, which may be handled by a single Justice of Appeal. Decisions from a single Justice of Appeal may be referred to a panel of 3 justices.

Article 138 provides for the empanelling of the High Court. Section 20 of the Judicature Act provides that so far as is practicable and convenient, every proceeding in the High Court shall, so far as is practicable and convenient, be heard and disposed of by a single judge. Jurisdiction is provided for in Article 139. Prosecution also has to be done in accordance with the Constitution. 

The corum of the ICD corum is constituted by a miximum of three judges under Direction 4(1) and (3), contrary to Article 138, which requires a minimumof one Judge.

The effect of creating the ICD went beyond an administrative internal arrangement of a division and became a new fully-fledged Court with exclusive jurisdiction to try specific offenses throughout the country with an irregular panel. The legal notice creating the ICD was therefore unconstitutional.

The right to a fair hearing can only be realized where a court is independent and impartial under Article 28 but not where it is unconstitutional.  No presumption of innocence can prevail before such a court and no justice can be administered before such a court.The establishment of the court contravened Articles 133, 138, 139, and 150 ofthe Constitution.

The CJ had no jurisdiction also to make rules of procedure. The rules committee under Section 40 of the Judicature Act cap 13 makes rules of procedure by statutory instrument under section 41 of that Act.The CJ alone has no legal authority to make rules of procedure. The rules thereby made should be declared unconstitutional.

Counsel for the respondent’s arguments were as follows: Legal Notice No. 10 of 2011 did not set up a court. It re-designated the War Crimes Division of the High Court into the International Crimes Division. Parliament had already determined under Article 139 and under Section 14 of the Judicature Act that the High Court has unlimited original jurisdiction in all matters.  The CJ could administratively decide which part of the jurisdiction would be handled by this court.  The CJ acted under the authority of the Constitution Article 133(1) to issue the legal notice. He did not need Parliament to specifically delegate authority for him to issue subsidiary legislation.

On the panels, if it was not practicable, the Honorable Principal Judge (PJ) could direct that more than one judge sitto constitute a coram.

On the rules of procedure, the CJ simply directed that the International Crimes Division would apply rules of procedure and evidence applicable to criminal trials in Uganda. No constitutional provision was therefore contravened in the establishment of the ICD.

We were referred to various documents attached to the affidavits of the 9^thpetitioner and that of Joan Kagezi, a Senior Principal State Attorney.  Annexure “C” to the affidavit of the 9^th petitioneris a Judgment pronouncing sentence by Honorable Justice Owiny Dollo in respect to A5 Nsubuga Edris in Uganda vs. Hussein Hassan Agad & 13 others Criminal Session Case No. 0001 of 2010. The case proceedings are entitled “The Republic of Uganda, in the High Court of Uganda at Kampala, International Crimes Division”.

We have carefully scrutinized the communications that went on between the Honorable Principal Judge on the one hand and then counsel of the accused on the other hand, attached to the affidavits of Ms. Joan Kagezi. We have concluded that the title of the sentencing judgment does not reflect the communication that led to the fixing of the case before Honorable Justice Owiny Dollo.

The gist of the communication is that on 6^th January 2011, the PJ wrote as follows;

“The Resident Judge

High Court Central Circuit- Nakawa

P.O.Box 20191

Kampala

Your Lordship,

RE: BAIL APPLICATIONS FILES

I acknowledge receipt of your letter dated December 22, 2010 and the four files in which four suspects are applying for bail.

I have noted your inability to handle the files and re-allocated them to Hon Justice Alphonse Owiny-Dollo for the bail applications on Monday 24^th January, 2011 and thereafter hearing of the case. Since His Lordship lacks office accommodation at the main High Court Building, further action in the matter shall be at the Judge’s chambers at the War Crimes Division of the High Court.

By copy hereof, the Deputy Registrar of your Court is informed of the action taken in the matter and requested to forward the files to his counter-part at War Crimes Division offices after the mention of the cases on Wednesday 12^th January, 2011 and to ensure that the suspects are produced before the new trial Judge on the due date.

For the avoidance of doubts, the case has been forwarded for action at the War Crimes Division not as a matter that falls in that Division but on account of the new trial Judge being based there.(Emphasis ours)

A special hearing session shall be organized to dispose of the matter in due course.

Hon. Justice Yorokamu Bamwine

PRINCIPAL JUDGE”

The petitioners did not dispute the fact that this letter related to them.

Earlier, the petitioner’s counsel had written to the Honorable PJ in a letter dated 19^th August, 2011 requesting that their case be transferred to the ICD. The petitioners concerned were the 1^st, 2^nd,3^rd,4^th, 5^th and the 6^th.The reasons given for the request were that one Mr. Onyango John Francis and Mr. Caleb Alaka were appearing before the same division in another case together with the same prosecutors for the DPP in both cases. It would therefore assist them in co-ordination of both cases. They further reasoned that the trial would be lengthy and involve translation into 4 different languages i.e. Kiswahili, Somali, Luganda and Kinyarwanda. It would thus facilitate a speedy trial as there were additional Judges in the ICD who could be appointed to hear the case.

The Honorable PJ refused to grant this request in his letter dated August 23, 2011. In his response, he pointed out that the High Court (International Crimes Division) Practice Directions 2011 came into existence after the commission of the alleged offences by the petitioners. He advised the counsel to raise the matter before the trial Judge.

The Honorable PJ’s letter of August 23, 2011 makes clear that the petitioners’ matter was assigned to Justice Owiny Dollo in his capacity as a Judge of the High Court but who was sitting in the International Crimes Division for lack of space at the High Court Building.

As such, his handling of the case and the fact that he titled the proceedings as emanating from the ICD does not go to jurisdiction. It is a mere indication of the division to which he was assigned as a Judge. This court has determined that titling of documents is merely a label and a matter of form rather than substance.It is not fundamental as it does not go to jurisdiction provided that the core competence to try a case exists. (See Davis Wesley Tusingwire Vs Attorney General Constitutional Petition No. 02 of 2013,Judgment of Lady Justice Solomy B.Bossa, JCC at Pg. 24)

We consider that it is not necessary to decide this matter on the merits as the challenge to the establishment of the ICD has been rendered moot by the above evidence.  It has been established that this matter is before a single judge of the High Court who was at the time sitting in the International Crimes Division.

Issues 4, 5, 7, and 15whether in light of all the above, this court should stay the proceedings in this Petitionbased on the alleged abuse of its process

The petitioners challenge the act of the Director of Public Prosecutions in prosecuting them after their rendition and extradition without first completing their process of appeal, respectively.  They also challenge the fact of their trial in the High Court on the charges that appear in their respective indictments. This issue is closely interlinked with the issue of whether or not this Court should stay the trial proceedings based on alleged abuse of its process we already alluded to. We have therefore chosen to consider all these aspects together.

Counsel for the petitioners argued that the DPP has always been aware that the accused persons were brought into jurisdiction in contravention of the Constitution. He could not abuse the process of the court by continuing with the prosecution contrary to Article 120 (5) of the Constitution, which requires him to exercise his powers with “regard to the public interest, the interest of the administration of justice and the need to prevent abuse of legal process”.

Counsel relied on the case of Regina v. Horseferry Road Magistrates Court ex parte Bennett No. 1 [1993] 3 WLR 90, [1994] 1 A.C. 42 from the UK, for the proposition that the High Court in the exercise of its jurisdiction, could inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of the extradition procedures, it may stay the prosecution and order the release of the accused.

He further cited the case of Regina v. Nicholas Robert Neil Mullen [1997] EWCA Cri. 278, [1998] 3 WLR 777,another case from the UK for the proposition that even in the fight against terrorism, there is need to adhere to the rule of law and that the state cannot degenerate into breaching the law in the name of fighting crime. The conviction in that case was set aside on the ground that the appellant had been illegally deported from Zimbabwe to the UK.

Counsel further relied on the South African Constitutional case of Khalifan Khamis Mohammed and another v. the President of the Republic of South Africa and six others (2001) CCT 17/01.

Counsel also cited the Kenyan case of Republic v. Amos Karuga Karutu High Court Criminal Case No. 12 of 2006 for the proposition that a prosecution mounted in breach of the law is a violation of the rights of the accused and is therefore a nullity. It matters not the nature of the violation.

Counsel also cited the case of Makula International Ltd. v. His Eminence Cardinal Nsubuga [1982] HCB 11for the principle that a court of law cannot sanction what is illegal, and illegality once brought to the attention of the court, overrides all questions of pleading, including any admissions made thereon. He further cited the case of Dr. Kiiza Besigye and Others v. Attorney GeneralConstitutional Petition No. 7 of 2007, where the Constitutional Court held that it could not sanction any continued prosecution of the petitioners, where during the proceedings, the human rights of the petitioners had been violated to such an extent that no fair trial would be achieved and any subsequent trial would be an abuse of the court process.

Counsel also relied on the ConstitutionArticles 23(1), 28, 44(c) and 221and submitted that they protect the rights to basic procedural fairness in criminal proceedings. Counsel further submitted that on the authority of Regina v. Horseferry Road Magistrates Court, Ex parte Bennet [1994] 1 AC 42 , a court has power to inquire into the circumstances by which a person has been brought within jurisdiction and if so what remedy is available to prevent his trial where he has unlawfully been brought within jurisdiction. It would be an abuse of court process, according to Counsel, to try a person who was brought illegally into jurisdiction. 

Counsel for respondent referred to the affidavit of the arresting officer, the then Regional Police Commander, Eastern Region, Mr. Aguma Joel, and argued that the situation following the attacks was serious and it was not surprising that a Regional Police Commander (RPC) could arrest a suspect. The 1^st petitioner was not detained in Malaba. Given that Police had substantial interest in him, he was immediately forwarded to RRU.  The Police had admitted in respect of the other petitioners that they were handed over to them so they had no reason to deny the arrest of the 1^st petitioner.  The Kenya Police deny arresting the 1^st and 6^th petitioners. They stated that they had them in for questioning but did not arrest them. There had never been any finding from any court in Kenya that they were renditioned.

We consider it appropriate to consider emerging jurisprudence in this area, this being a novel case. We shall begin by examining the circumstances under which the philosophy underlying the proposition that a court may stay proceedings brought against a person who has been unlawfully abducted in a foreign country may be applied.

The US cases

The Respondent relied on the case of Ker versus Illinois (supra). It concerned the kidnapping in a foreign country and forcible abduction into the US of a defendant by US agents. The facts of the case were that Ker committed an offence in Illinois. He fled to Peru. One, Julian, went to Peru, seized him and carried him out of the territory of Peru to the US. The US had an extradition treaty with Peru. In fact, Julian went to Peru with the necessary papers to procure the extradition of Ker under the treaty but he never used them. This treaty was not followed in bringing him back to the US for trial. The main issue in that case was whether the court in Illinois had jurisdiction to try the defendant, given the circumstances under which he was brought into its jurisdiction. The main argument at the trial was that by virtue of the treaty of extradition with Peru, the defendant acquired by his residence in that country a right of asylum. This right required that he should be free from molestation for the crime committed in Illinois. It was a positive right in him that he should only be forcibly removed from Peru to the state of Illinois in accordance with the provisions of the treaty. This was a right, which he could assert in the courts of the US in all cases, whether the removal took place under proceedings sanctioned by the treaty, or under proceedings which were in total disregard of that treaty, amounting to an unlawful and unauthorized kidnapping.

The US Supreme Court held that the mere fact that a criminal is illegally carried, against his will, into the United States from a foreign country, with no reference to extradition treaties, does not render his subsequent trial and conviction, based upon jurisdiction regularly acquired by his presence in the country, invalid, as tending to deprive him of liberty “without due process of law”.

A similar question arose in another US case of US v. Dr. Humberto Alvarez-Machain (supra). The facts were that a Mexican national had been forcibly kidnapped and brought to the US to stand trial for crimes in connection with the kidnapping and murder of a US Drug Enforcement Administration special agent and his pilot. He moved to dismiss his indictment at the trial claiming that his abduction constituted outrageous government conduct, and that the District Court lacked jurisdiction to try him because he was abducted in violation of the extradition treaty between the US and Mexico (The Extradition Treaty of May 4, 1978 No. 9656).

The District Court dismissed the indictment on the ground that it violated the Extradition Treaty, discharged him and ordered his repatriation. The Court of Appeals affirmed the decision of the District Court, finding that the jurisdiction was improper, based on the fact that the US had authorized the abduction and the Mexican Government had protested the Treaty violation.

When the matter went before the Supreme Court of the US, the issue was whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of the US courts. The Supreme Court reversed the Court of Appeals decision. It held that a court in the US had jurisdiction to try a Mexican national who had been forcibly kidnapped and brought to the US for violations of the criminal law of the United States. It further held that a defendant may not be prosecuted in violation of the terms on an extradition treaty that requires that he should be prosecuted for only those offences for which he was extradited. However, when a treaty has not been invoked, a court may properly exercise jurisdiction even though the defendant’s presence is procured by means of a forcible abduction.

It stated and we quote;

“The question of how far his forcible seizure in another country, and transfer by violence, force, or fraud, to this country, could be made available to resist trial in the State court, for the offence now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties, of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to this trial in such court.”

We note that in the American jurisprudence expounded, the US Supreme Court consistently refused to regard forcible abduction from a foreign country as a violation of the right to trial by due process of law guaranteed by the Fourteenth Amendment to the Constitution.

The South African case

In the case of State v. Ibrahim [1991] (2) S.A.553, the South African Court of Appeals allowed an appeal against the conviction of the appellant for treason.The appellant, a member of the military wing of the African National Congress who had fled South Africa while under a restriction order, had been abducted from his home in Mbabane, Swaziland, by persons acting as agents of the South African State and taken back to South Africa, where he was handed over to police and detained in terms of the security legislation. He was subsequently charged with treason in a Circuit Local Division. The appellant had, prior to pleading, applied for an order that the court lacked jurisdiction to try the case as his abduction was in breach of international law and thus unlawful. The application was dismissed and the trial continued. He was convicted and sentenced to 20 years’ imprisonment.   On appeal against the dismissal of the application, the South African Court of Appeals, upheld the objection to the trial.

The Court stated that according to Roman Dutch law, as adapted to the local circumstances of South Africa (Roman Dutch common law), one of the limitations to a court’s exercise of jurisdiction in criminal cases is that even if an offence was committed within the area of jurisdiction of the court, a court had no jurisdiction to try a person who was abducted from another jurisdiction by agents of the State authority exercising power in the area of the jurisdiction of the court.

It then stated and we quote;

“Several fundamental legal principles are implicit in those rules (of the Roman Dutch law), namely, the preservation and promotion of human rights, good international relations, and the sound administration of justice. The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, state sovereignty must be respected, the legal process must be fair towards those who are affected by it and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice. The state is also bound thereby. When the state itself is a party to a case, as for example in criminal cases, it must as it were come to court with ‘clean hands’. When the state is itself involved in abduction over territorial boundaries, as in the present case, its hands are not clean(emphasis added). Rules such as those mentioned are evidence of sound legal development of high quality.”

The South African Court of Appeals upheld the objection based on Roman Dutch common law, that was applicable in South Africa, that the court lacked jurisdiction to try the appellant and his application should therefore have succeeded. As the appellant should never have been tried by the court, the consequences of the trial had to be undone and the appeal disposed of the conviction and sentence.

We note that in this case, the state of South Africa violated the territorial integrity of Swaziland by sending its own police to abduct the appellant from Swaziland. The South African Court of Appeals also considered that it had no jurisdiction to try him, given the breaches of international law that South Africa had been privy to. It is therefore distinguishable from the present case.

The Zimbabwe case

Zimbabwe’s jurisprudence has a different nuance as the Zimbabwe Supreme Court decision in case of Beahan v. State [1992] LRC (Crim), demonstrates. The appellant in this case was arraigned in the High Court of Zimbabwe on a charge of contravening section 50(1) of the Law and Order (Maintenance) Act (cap 65). He was convicted of terrorism. He appealed against the conviction.

The facts were that the appellant was the leader of a group of armed terrorists.  The indictment alleged that the appellant, acting in concert with other persons and with intent to endanger the maintenance of law and order in Zimbabwe, attempted to commit an act of terrorism or sabotage when he conspired with others to forcibly effect the release from the lawful custody of the Zimbabwe certain South African agents detained on the charges relating to their involvement in acts of terrorism, sabotage or espionage, and to remove them outside the borders of Zimbabwe. It was further alleged that in pursuance of the plan, he entered Zimbabwe on June 27, 1988 at Kazungula border post, and acted in a manner that was likely to cause serious bodily injury to or endanger the safety of any person within Zimbabwe, and did cause such serious bodily injury. 

In pursuance of the conspiracy, it was alleged,the appellantentered Zimbabwe with a co-conspirator. On being questioned by the Zimbabwean Police and immigration officials, he fled to Botswana. The other members of the group remained in Zimbabwe and attempted by force to effect the release of the South African agents, but were thwarted by the Zimbabwe security agencies. 

At the time of his arrest, the appellant was a resident of South Africa and a citizen of the United Kingdom. He was arrested in Botswana and remained in the custody of the Botswana Police for 5 days. During that period, he did not appear in court nor did he have access to legal representation. He was handed to the Zimbabwe Republic Police on the 5^th day.  There was no extradition treaty between Zimbabwe and Botswana.  The government of Zimbabwe did not make a request to the Government of Botswana for the extradition of the appellant from Botswana to Zimbabwe. The appellant did not receive any documents at any stage to show his deportation from Botswana to Zimbabwe.  Members of the Botswana Police Force became aware that the Zimbabwe Republic Police wanted the appellant and agreed to hand him over to them.

In response to the indictment, the appellant pleaded that the court had no jurisdiction to try him for the offence on the ground that he was unlawfully removed from Botswana by members of the Police Force of Botswana and handed to members of the Zimbabwe Republic Police at Plumtree. The removal of the accused from Botswana was not a deportation in terms of the law of Botswana, but amounted to an extradition from Botswana without following any such procedures. The special plea was dismissed.

The appellant appealed against the dismissal of his plea.  The appeal was dismissed.  His trial continued and he altered his plea to one of guilt.  He was found guilty of the involvement in the shooting of a security guard at the ZISCO Airstrip at Kwe Kwe and deliberate damage to the National Airforce’s Bell helicopter and sentenced to life imprisonment with labor. One of the issues on appeal was whether the High Court had jurisdiction to try the appellant. 

The Zimbabwe Supreme Court examined and approved various principles of Roman Dutch law as adapted to local circumstances as laid down in the South African case of State v. Ibrahim (supra), noting that there was need to recognize and enforce fair standards of criminal justice towards which every legal system should strive.

The court however distinguished the circumstances under which the appellant had been brought to Zimbabwe from the case of State v. Ibrahim (supra) and noted the following facts. The appellant in the Zimbabwe case was a fugitive from Zimbabwe, who had entered Botswana illegally in transgression of the immigration laws. He was apprehended by members of the Botswana defense force and handed over to the Botswana police, who were aware that the authorities in Zimbabwe were anxious that he be returned to stand trial. The appellant alleged that a member of the Zimbabwe Republic police had interrogated him at the main police station in Gaborone and thereafter requested that he be returned to Zimbabwe.

The appellant was conveyed in the custody of the Botswana police to the border between the two countries and voluntarily surrendered to the Zimbabwe Republic police, who then promptly arrested him. The agents of Zimbabwe did not use force or deception to recover the appellant from Botswana. The decision to convey him to Zimbabwe was made by the Botswana Police alone.

The Court further held that the acts of the Zimbabwe Republic Police in receiving and arresting the appellant did not constitute a violation of international law for it involved no affront to the sovereignty of a foreign state. Even if it was assumed that a member of the Zimbabwe Republic police had interrogated the appellant at the main police station in Gaborone and thereafter requested that he be returned, such action does not absolve the appellant.

The Court concluded that the failure by the Botswana authorities to have recourse to proper deportation procedures did not constitute a bar to the High Court in Zimbabwe exercising jurisdiction over him.

Gubbay CJ., who read the judgment of the court stated and we quote;

“In my opinion it is essential that in order to promote confidence in and respect for the administration of justice and preserve the judicial process from contamination, a court should decline to compel an accused person to undergo a trial in circumstances where his appearance before it has been facilitated by an act of abduction undertaken by the prosecuting state. (Emphasis ours).There is an inherent objection to such a course both on grounds of public policy pertaining to international ethical norms and because it imperils and corrodes the peaceful co-existence and mutual respect of sovereign nations. For abduction is illegal under international law, provided the abductor was not acting on his own initiative and without authority or connivance of his government (sic). A contrary view would amount to a declaration that the end justifies the means, thereby encouraging states to become law-breakers in order to secure the conviction of a private individual”.

English cases

English common law regarding irregular apprehension of an offender abroad and the jurisdiction of English courts to try such an offender was examined by the House of Lords in the case of Regina v. Horseferry Road Magistrate’s Court Ex Parte Bennett[1994] 1 A.C. 42. The earlier approach of the English courts had been that once a suspect is in lawful custody in that country and charged with an offence, which that court has jurisdiction to hear, the court has no power and is not concerned to inquire into the circumstances in which he may have been brought into its jurisdiction.  It was no answer to a charge that such person was arrested contrary to the laws of the State of refuge. He was in custody before a court that had jurisdiction to try him. (see Ex p Scott (1892) 9 B & C 446, 109 ER 166; R v. Sattler (1858) Dears &Bell 539, 169 ER 1111, Re Parisot (1890) 5 TLR 344 and in R v. O/C Depot Battalion RASC Colchester, ex p Elliot [1949] 1 All ER 373, R v Plymouth Magistrates’ Court ex p Driver [1952] 2 All ER 681, [1986] QB 95).

This jurisprudence was reversed by the House of Lords in the case of Regina v. Horseferry Road Magistrates’ Court, Ex parte Bennett (supra). The facts of that case were that the appellant was a New Zealand citizen. The English Police wanted him in connection with the purchase of a helicopter in England in 1989. The essence of the case against the appellant was that he raised the finance to purchase the helicopter by a series of false pretences and had defaulted on the repayments. The English Police eventually traced the appellant and the helicopter to South Africa. The English Police, after consulting with their own Crown Prosecution Service, decided not to request the return of the appellant through the extradition process. There were no formal extradition provisions in force between the United Kingdom and the Republic of South Africa and any extradition would have to be by way of special extradition arrangements under section 15 of the Extradition Act 1989. No proceedings of the appellant’s extradition were ever initiated.  The evidence showed collusion between the Metropolitan Police and the South African police in kidnapping the appellant and securing his enforced illegal removal from the Republic of South Africa.

The appellant was produced before a stipendiary magistrate for the purpose of committal proceedings. The appellant applied for an adjournment to challenge the jurisdiction of the magistrate’s court. Court refused the adjournment and committed him for trial on five offences of dishonesty.  The appellant applied for judicial review, challenging the jurisdiction of the magistrate’s court to commit him for trial, and argued that the criminal court had jurisdiction to consider and pass judgment upon the circumstances in which he had been brought within the jurisdiction.

The Divisional Court (Appeal Court) rejected the argument, ruling that even if the evidence showed collusion between the Metropolitan Police and the South African police in kidnapping the appellant and securing his enforced illegal removal from the Republic of South Africa, there was no jurisdiction vested in the court to inquire into the circumstances by which the appellant came to be within the jurisdiction and accordingly dismissed the application for judicial review. The Divisional Court then certified the following question to the House of Lords;

“Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction.”

In the House of Lords, the appellant alleged that the English Police colluded with the South African Police to have the appellant arrested in South Africa and forcibly returned to England against his will. He was allegedly arrested by two South African detectives at Lanseria in South Africa. They fixed a civil restraint order on the helicopter on behalf of the United Kingdom finance company and told the appellant that Scotland Yard wanted him and he would be taken to England. They held him in police custody until he was placed on an aeroplane in Johannesburg ostensibly to be deported to New Zealand via Taipei.  He attempted to disembark at Taipei but was restrained by two men who identified themselves as South African police and stated that they had orders to return him to South Africa and then to the UK and hand him over to Scotland Yard. They returned him to South Africa, and held him in custody until he was placed, handcuffed to the seat, on a flight from Johannesburg to Heathrow, where he was immediately arrested by three police officers.

The appellant submitted that having taken the decision not to employ the extradition process, the English Police colluded with the South African police to have the appellant arrested in South Africa and forcibly returned to England against his will. He was arrested in South Africa by the South African police. He was told that he was wanted by Scotland Yard and that he was being taken to England.

The English Police denied that they were in any way involved with the South African police in returning the appellant to England. They stated that they had been informed that there were a number of warrants for the appellant’s arrest in existence in Australia and New Zealand and that they requested the South African police to deport the appellant to either Australia or New Zealand and it was only later that they were informed by the South African police that the appellant was to be repatriated to New Zealand by being placed on a flight to Heathrow from where he would then be placed on another flight to New Zealand.

However, they admitted that they had held discussions with South African police where it was agreed that he would be returned via London. The English police further sought advice from the Crown Prosecution Service and from the Special Branch of the Metropolitan Police on what the position would be if the appellant was returned to London. Thereafter, the English police made it clear to the South African police that if he was returned through London, he would be arrested on arrival. The South African police confirmed that the appellant would be returned to New Zealand via Heathrow.

The Respondent submitted that a court has no jurisdiction to inquire into the circumstances by which the appellant came to be within the jurisdiction.

The House of Lords presumed that the English police took a deliberate decision not to pursue extradition procedures but to persuade the South African police to arrest and forcibly return the appellant to England, under the pretext of deporting him to New Zealand via Heathrow so that he could be arrested at Heathrow and tried for the offences of dishonesty he is alleged to have committed in 1989. The Crown Prosecution Service on being consulted was also presumed to have approved of the behavior of the police.

After examining previous jurisprudence to the effect that a court had no power to inquire into the circumstances in which a suspect was brought within its jurisdiction, the House of Lords examined how other jurisdictions had answered the question analogous to that before them in terms of their own legal systems. The House of Lords then allowed the appeal. We consider the holding of Lord Bridge of Harwich pertinent. He stated and we quote;

“Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognizance of that circumstance. (emphasis added).  To hold that the court may turn a blind eye to executive lawlessness it would again appear to me to be a wholly inadequate response for the court to hold that the only remedy lies in civil proceedings against the individual officers of the law enforcement agency who were concerned in the illegal action taken. Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted…To hold that in these circumstances the court may decline to exercise its jurisdiction on the ground that its process has been abused may be an extension of the doctrine of abuse of process but is, in my view a wholly proper and necessary one.”

The decision of the court was thus largely based on the fact that the British Prosecuting agency and Police were active participants in the abduction.

In the English case of Regina v. Nicholas Robert Neil Mullen [1999] EWCA Crim 278, the appellant was convicted by the Central Criminal Court of conspiracy to cause explosions, likely to endanger life or cause serious injury to property. He was sentenced to 30 years’ imprisonment. He applied for leave to appeal the sentence to a single judge. It was refused. He applied to the full Court for leave and it was refused. Seven years later, a differently constituted full Court granted his application for extention of time and leave to appeal against conviction.  The ground of appeal was that there was abuse of process in securing the trial of the appellant, and that therefore, the conviction obtained thereby was unsafe and should be quashed.

The facts were that following a shooting incident in Battersea, on December 21, 1998, the police searched a flat and found over 100pounds of Semstex, timing and power units for detonating various types of bombs, a number of readymade car bombs, blasting incendiary devices, mortar bomb equipment, firearms and ammunition.  The Prosecution alleged that the appellant was responsible for renting those and several other premises used by the bomb makers and for supplying them with false birth certificates and driving licenses. He also obtained a number of cars for them and arranged banking facilities at two building societies. He wrote an inventory of bomb making equipment which the police found at the flat. The police found traces of Semtex in two of the cars which he had bought.

The defense was that the appellant had arranged the premises, banking facilities, and false documentation for two men who he believed would use them in a credit card fraud. He was unaware of the Irish Republican Army (IRA) involvement until he was later informed of it by them. Once he learnt of it, he sought to withdraw from the scheme. He claimed that the IRA had fired a gun at him and made threats in relation to his girlfriend and child. He had written the inventory under duress at their dictation.

Subsequent to the discovery of the explosives, the appellant departed from Britain with his family for Zimbabwe. He was brought back to the United Kingdom from Zimbabwe about one year later by a Zimbabwe immigration officer. British Police arrested him on arrival and detained him. He made some qualified statements to Police in the presence of his solicitors. He had English and Irish passports and a lengthy criminal record. 

The court found the following facts to be established: Although London police considered that there was ample evidence that the appellant had acted as a facilitator, and could therefore appropriately be the subject of an application to Zimbabwe for extradition, the Secret Intelligence Service (SIS) mandate was to explore the prospects for and subsequently to procure deportation.  The SIS took active steps to persuade the Zimbabwe Central Intelligence Organization (CIO) that there existed grounds for deportation and provided evidence, including, crucially, evidence of previous convictions, as well as draft documents recommending grounds for deportation.  The steps taken by the SIS were directed to evading the effect of and the principles expressed by the Divisional Court in Mackeson; (The Supreme Court in Zimbabwe had ruled in that case that the authorities could deport a person to a country of origin notwithstanding that the deportee was wanted with a view to prosecution there).  The SIS was aware from the CIO that, both on the grounds of the appellant’s lies in his applications for entry into Zimbabwe and for a temporary employment permit and of his previous convictions, the Zimbabwe authorities had strong grounds for his deportation.  However, the SIS was also determined to ensure , if possible, that if his deportation were ordered, he should not be able to challenge it in the courts of Zimbabwe or to make representations to the Minister that his deportation should not be to Britain from where he had entered Zimbabwe but should be to Ireland of which he was a national.  If he had opportunity to challenge the order to make representations there was clearly a substantial risk that, if he were deported at all, it might be to Ireland.

To accomplish this purpose the SIS recognized the need for stage-management of the timing of his detention by reference to an immediately available flight to London.  The SIS specifically considered and suggested to the CIO how to deal with any last-minute claim by the Appellant to be deported to Ireland.  In order to achieve an order for deportation the local SIS officer was very persuasive with the Deputy Director General (DDG) of the CIO. 

The Court inferred that the SIS was made aware of the instructions issued by the CIO that the appellant be allowed no access whatsoever to lawyers. The abuse of process was not argued before the trial Judge.

The Court of Appeal (Criminal Division) of England and Wales approved the statement of Lord Steyn in the case of In Latif [1996] 1 WLR 104 that;

“General guidance as to how the discretion to decide whether there has been an abuse of process should be exercised in particular circumstances will not be useful. But it is possible to say that … a judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies the means.” (Emphasis added).

The Court of Appeal then went on to consider what needed to be taken into account.  It stated that;

“As a primary consideration, it was necessary to take into account the gravity of the offence in question. In the present case, the substance of the case was the facilitating of a bombing campaign in the United Kingdom, which but for the discovery by the police of the Battersea explosives and armaments cache, might have caused loss of life and injury to members of the pubic and more probably, substantial damage to property in that country. The appellant’s sentence of 30 years’ imprisonment reflected the gravity of the offence. Although it was not at the very top range of seriousness of criminal activity, it was undeniably at a very high level in that range.

Secondly, although the appellant had lent assistance to an active IRA unit, there is no evidence to suggest that, unless he were at once apprehended and brought back to his country, he would pose, whether in Zimbabwe or elsewhere, an immediate and continuing security threat to life and property here. Once the Battersea operation had been thwarted, as it had been some six weeks before his deportation, his activities in Zimbabwe do not appear to have presented an imminent security threat.

Thirdly it is necessary to consider the nature of the conduct of those involved in the deportation on behalf of the British Government. As appears from the summary for disclosure:

This Court is firmly of the view that it must have been appreciated by the SIS, and probably the police in Britain, that the vital element in the operation-the insulation of the appellant from any legal advice following his detention- was in breach of specific provisions of the law of Zimbabwe, or, at least, was contrary to the appellant’s entitlement as a matter of human rights.

In summary therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the appellant by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe. In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of Public International Law (emphasis ours).

In all these circumstances, can it now be said that the conduct of the British authorities in causing the appellant to be deported in the manner in which he was, and in prosecuting him to conviction was…so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to succeed?

This Court recognizes the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organizations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the appellant in the manner which has been described, represents, in the view of this Court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts (emphasis added). The need to discourage such conduct on the part of those responsible for criminal prosecution is as a matter of public policy, to which… very considerable weight must be attached…. But for the unlawful manner of his deportation, he would not have been in this country to be prosecuted, and there was a real prospect that he would never have been brought to this country at all…. In the circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings to be stayed…”

The Court of Appeal then concluded that the prosecution and conviction of the appellant were unlawful.     

As we have already noted, the American decisions of the Supreme Court of the United States concern the issue whether or not an accused acquires a constitutional defense to the jurisdiction of the United States courts if he is abducted from a foreign state by agents of the US i.e. is forcible abduction from a foreign country as a violation of the right to trial by due process of law guaranteed by the Fourteenth Amendment to the US Constitution.  So in that regard, they may be distinguished from the English and other decisions, where the question is whether, a court properly seized of a criminal case, has discretion to stay the trial of such accused where there has been an abuse of its process.

We also note that in the South African case of State v. Ibrahim (supra), the State of South Africa, through its police violated the laws of Swaziland by forcibly abducting the appellant there from and thus violating the territorial integrity of Swaziland, contrary to international law.

We have found the cases from England and Zimbabwe more illuminating and therefore more persuasive. Before we examine them, we note that abduction is defined by the 21^st Century Dictionary as the illegal taking away of someone by force or deception.

The House of Lords in the case of Regina v. Horseferry Road Magistrates Court, Ex parte Bennet (Supra) grappled with a question similar to one we have to answer.  It was put in these terms by Lord Lowry;

The question still remains what circumstances antecedent to the trial will produce a situation in which the process of the court of trial will have been abused if the trial proceeds.

He then proceeded to answer the question thus;

“A court should have power to stay…any criminal proceedings against the appellant, assuming the facts alleged to be proved, on the ground that to try those proceedings will amount to an abuse of its own process either because it will be impossible (usually by reason of delay) to give the accused a fair trial or because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case….  The jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons…”(Emphasis ours)

On the philosophy underlying stay of proceedings brought against a person who has been unlawfully abducted in a foreign country, he stated and we quote;

“The philosophy which inspires the proposition that a court may stay proceedings brought against a person who has been unlawfully abducted in a foreign country is… that court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. (Emphasis ours)Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused. Therefore, although the power of the court is rightly confined to its inherent power to protect itself against the abuse of its own process,, the facts relied on in cases such as the present case…are indispensible foundation for the holding of the trial.

The implications for international law, as represented by extradition treaties, are significant. If a suspect is extradited from a foreign country to this country he cannot be tried for an offence which is different form that specified in the warrant and, subject always to the treaty’s express provisions, cannot be tried for a political offence. But if he is kidnapped in the foreign country and brought here, he may be charged with any offence, including a political offence.If British officialdom at any level has participated in or encouraged the kidnapping, it seems to represent a grave contravention of international law, the comity of nations and the rule of law generally if our courts allow themselves to be used by the executive to try an offence which the courts would not be dealing with if the rule of law had prevailed….

If proceedings are stayed when wrongful conduct is proved, the result will not only be a sign of judicial disapproval but will discourage similar conduct in future and thus will tend to maintain the purity of the stream of justice. No “floodgates” argument applies because the executive can stop the flood at source by refraining from impropriety.”

The facts of this case have already been set out and are clearly distinguishable from the instant case. In that case, the House of Lords found British officialdom at various levels to have participated in or encouraged the abduction of the appellant. The British police, prosecuting or other executive authorities were a knowing party to the abduction and had opted not to follow extradition procedures, when that process of law was available to return the accused to Britain.

However, we consider that the case lays down the principle that; a court may stay proceedings brought against a person who has been unlawfully abducted in a foreign country by the security, police or prosecuting authorities of the prosecuting state as this offends the court’s conscience for being contrary to the rule of law.The principle is useful for the examination of the question of whether and when a court can stay proceedings based on alleged abuse of its process. We accordingly adopt it.

We recognize and adopt four important aspects in the quoted passage of the House of Lords in that case thus:

Firstly, Courts must guard not only against an abuse of the law that has been put in place to facilitate the determination of a criminal charge but must also guard against the much wider and more serious abuse of the criminal jurisdiction in general.

Secondly, the jurisdiction to stay proceedings must be exercised carefully and sparingly and only for very compelling reasons

Thirdly, there must be cogent evidence that the suspect(s) was/were abducted from a foreign country, and there must be proof of participation of either the Police or Prosecution of the prosecuting state, covert or overt in the abduction.

Fourthly, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.

We have also gained some insights from the case of Regina v. Nicholas Robert Neil Mullen (supra). A

We understand from the passages quoted from this case that:

Abuse of process warranting stay of proceedings depends on the facts of each case and should therefore be decided on a case by case basis.

The considerations should be:  the gravity of the offence; whether the suspect poses an immediate and continuing security threat to life and property to the country or elsewhere; and the nature of the conduct of those involved in bringing him into the jurisdiction of the court that has to try him.  However there will be cases, in which despite the apparent abuse, the offences are so grave that it would be a proper exercise of discretion to permit the prosecution to proceed.

 Although in this case (Regina v. Nicholas Robert Neil Mullen (supra)) the appeal was against conviction based on the manner, in which the appellant’s prosecution was procured based on abuse of process regarding his deportation, we consider that the principles laid down are applicable to stay of proceedings based on abuse of process are relevant where there has been no deportation, as in the instant case with regard to the 1^st to 8^th Petitioner. We are persuaded and accordingly adopt them as applicable.

We have further found inspiration in the Zimbabwe case of Beahan v. State (supra). The Supreme Court of Zimbabwe relied on the principle stated in the treatise by Morgenstern“Jurisdiction in Seizures Effected in violation of International Law’ (1952) 29 British Year Book of International Law 262 at 270-271, in Oppenheim’s International Law (8^th edn, 1955) Vol. 1. P 703 and quoted in the South African case of State v. Ibrahim thus:

“Where the agents of the state of refuge without resort to extradition or deportation proceedings surrender the fugitive for prosecution to another state, that receiving state, since it has not exercised any force upon the territory of the refuge state and has in no way violated its territorial sovereignty, is not in breach of international law.”

The state also relied on the treatise by O’Connell on International Law 2^nd Ed., 1970) Vol. 2 p. 834 that put the same principle thus;

“The case of a voluntary surrender of the offender, but in violation of the municipal law of the State which makes it, is different from that just discussed (i.e. illegal seizure on foreign territory). Even if the surrender is contrary to an extradition treaty it is still not a violation of international law since no sovereign is affronted, and the offender has no rights other than in municipal law.”

The principle we derive from this case is that; where there is a voluntary surrender of an offender though in violation of the municipal law of the state which makes the surrender, there is no violation of international law by the receiving state as it will not have used force upon the territory of the surrendering state and therefore no violation of international law will have been committed in this regard.

We also consider established the principles that; a court has no jurisdiction to try a person who was abducted from another jurisdiction by agents of the State authority exercising power in the area of the jurisdiction of the court (see the case of State v. Ibrahim supra) and that;abduction/kidnapping represents a grave contravention of international law, the comity of nations and the rule of law generally (see the case ofRegina v. Horseferry Road Magistrates Court, Ex parte Bennet (Supra).

We observe that courts in this country have scrupulously reaffirmed the need to observe the rule of law and prevent the abuse of court process. The case of Dr. Kiiza Besigye and others v. Attorney General (supra) has held that this court is obliged to intervene, and even stay proceedings, where the abuse of the court process is such that no fair trial can be achieved. This principle was reaffirmed by the Supreme Court see Dr. Kiiza Besigye and Others v. Attorney GeneralConstitutional Appeal No. 1 of 2006 (supra).

We understand that the administration of justice includes acts of the law enforcement agencies that precede the trial process in court. It is on the basis of these acts, and on those that took place after the arraignment of the petitioners that they seek declarations from this court that they have a bearing on their right to a fair trial and vitiate the entire proceedings, which should therefore be stayed. It is thus necessary to examine them in the manner that the petitioners have deemed appropriate to divide them.

To resolve the matter before us we think answering the following questions is necessary:Can this Court stay the trial of the petitioners on ground of objection that the Director of Public Prosecutions and the Police secured the Petitioner’s presence within the territorial jurisdiction of the High Court by unlawfully receiving them from within the jurisdiction of Kenya and Tanzania, in violation of international law and/or  in violation of the laws of those states; and/or in violation of whatever rights they enjoyed under the laws of those states; and/or in disregard of available procedures to secure their lawful extradition from those states to the Uganda? Did the Uganda Police unlawfully detain the Petitioners? Were the petitioners tortured during their detention pre and post remand?

Following the Constitutional provisions cited by Counsel and the guidelines set in the cases of Regina v. Horseferry Road Magistrates Court, Ex parte Bennet (Supra) and Regina v. Nicholas Robert Neil Mullen(supra),  and the Zimbabwe case of Beahan v. State set out above, which we have adopted, we proceed to apply the principles to the facts of the instant case with a view to providing answers to the above asked questions.

The offences with which the Petitioners are charged:

The amended indictment is attached to the affidavit of the 1^st petitioner as annexure C.  In the first, second and third counts, the Petitioners are charged with terrorism contrary to section 7(1) of the Anti Terrorism Act 2002. The particulars in the first count allege that the Petitioners and others at large on July 11 2010 at Kyadondo Rugby Club, Nakawa Division in Kampala District with intent to influence the Government of the Republic of Uganda or intimidate the public or section of the public and for a political, religious, social or economic aim without due regard to the safety of others or property, intentionally and unlawfully delivered and discharged an explosive into Kyadondo Rugby Club with intent  to cause death and serious bodily injury, or extensive destruction likely to or actually result  in major economic crisis.

In the second count, the particulars are that the petitioners and others still at large at the Ethiopian Village Restaurant, Makindye Division, in the Kampala District with intent to influence the Government of the Republic of Uganda or to intimidate the public or section of the public and for a political, religious, social or economic aim without due regard to the safety of others or property, intentionally and unlawfully delivered and discharged an explosive into Ethiopian Village Restaurant with intent to cause death and serious bodily injury, or extensive destruction likely to or actually result in major economic loss.

In the third count, the particulars are that the petitioners and others still at large on July 11, 2010 at Makindye House, Makindye Division, in the Kampala District with intent to influence the Government of the Republic of Uganda or intimidate the public or section of the public and for a political, religious, social or economic aim without due regard to the safety of others or property, intentionally and unlawfully delivered and discharged an explosive into Ethiopian Village Restaurant with intent to cause death and serious bodily injury, or extensive destruction likely to or actually result in major economic loss.

The petitioners face 78 counts of murder, reflecting the number of people who died in the attacks that took place. The maximum penalty for murder is death.

The petitioners face 10 counts of attempted murder, reflecting the number of people who survived the carnage. The maximum penalty for this is life imprisonment.

One petitioner faces one count of conspiracy to commit acts of terrorism contrary to the Anti-Terrorism Act and another of being an accessory after the fact, contrary to sections 28(1) and 29 of the Anti-Terrorism Act.

In our considered opinion, these are very serious offences indeed if they are proven to have been committed by the petitioners. Given the maximum penalties for some of the offences like murder, we consider that they are at the very top range of seriousness of criminal activity, and are therefore grave offences. The gravity of the offences does not therefore favor the exercise of our discretion to stay the criminal proceedings.

Whether the petitioners pose an immediate and continuing security threat to life and property to this country or elsewhere

We note that there is strong public revulsion to terrorism and the killing and maiming of innocent citizens, not to mention the destruction of property.  It inspires fear and panic in the society. We have already noted the numerous deaths, injuries, and destruction of property that the Kampala 2010 bomb explosions caused. We are of the considered view that if the allegations against the petitioners are proved to be true, there is no doubt in our minds that the petitioners may pose a danger not only to Uganda but to other countries as well.  This element also does not favor the exercise of our discretion to stay the proceedings and we so hold.

The conduct and role of the Police and Prosecution in the arrest of the Petitioners.

The major complaint of the petitioners against the Ugandan Police is that they received the petitioners, without the benefit of extradition proceedings. It is also alleged that some police officers interrogated some of the suspects after their arrest in Kenya and Tanzania. The 7^th and 8^th petitioners allege that a Prosecutor of the office of the DPP was present in Kenya and Tanzania after their arrest and during their interrogation.

We have also closely examined submissions and the authorities relied on by the parties. We have already found that the 1^st petitioner was arrested by the Ugandan Police at the border in Malaba without valid travel or identification documents. It subsequently transpired that he was on the wanted list of suspects in the Kampala bombings. The 6^th petitioner was also arrested by the Uganda Police at Malaba without valid identifying or travel documentation. In the circumstances, these two were properly arrested in Uganda and not merely handed over to the Police in Uganda as alleged by them.

The 7^th and 8^th petitioners were extradited from Tanzania, albeit without first exhausting their appeals against extradition.  Much as it may have been desirable to let the petitioners exhaust the legal procedures before Tanzanian authorities surrendered them to Uganda authorities, this was a voluntary decision taken by the sovereign state of Tanzania, after decisions by her courts to extradite the Petitioners. We find that the Ugandan Police officers had no say in the decision of Tanzania to act as it did. It is therefore our judgment that the 7^th and 8^th petitioners were properly and legally received by the Ugandan Police.

We have carefully looked at the circumstances in which each of the petitioners was brought to Uganda and surrendered into the hands of the Ugandan Police. We are mindful that the personal liberty of each of the Petitioners is a very important human right, guaranteed by the Constitution in Article 23 as well as international instruments like the International Covenant on Civil and Political Rights (ICCPR) Article 6 and 9 and The African Charter on Human and Peoples Rights Article 6.

However, there has not been established any infraction on the part of the Ugandan police of the law in the jurisdiction of either Kenya or Tanzania.  The facts in the instant case are that Uganda requested assistance from other jurisdictions to apprehend suspects, once it was understood that the attacks had been planned and coordinated in various neighboring and other countries. The countries approached voluntarily agreed to assist. In their readiness to assist, Kenya and Tanzania apprehended the petitioners. Kenya opted to arrest and surrender the 1^st to the 6^th, and the 9^th and the 11^th petitioners to Uganda, without referring to the treaty arrangements in place for extradition or deportation respectively.

Tanzania opted to file for extradition proceedings, and once they were completed in the courts of first instance, they handed over the 7^th and 8^th petitioners without waiting for the appeals. Ugandan Police officers received the petitioners in those circumstances. Even if any of the officers of the DPP, the Ugandan Police or intelligence agencies were to be present as alleged at any stage in the process of interrogation in Kenya or Tanzania, which is denied, by the respondent, this of itself does not diminish the voluntary and sovereign nature of the acts of the Kenyan and Tanzanian governments in cooperating to arrest and surrender the petitioners to Uganda. Police forces in Kenya and Tanzania acted independently in reaching the decisions that they did.

This Court does not have jurisdiction, Kenya and Tanzania being sovereign states, to pronounce itself on any of the alleged acts of abduction and torture that the petitioners say were committed by the respective national Police forces of Kenya or Tanzania.  

In the circumstances, the alleged illegality of what may have occurred outside Uganda’s borders, without the active participation of the law enforcement officers of Uganda, cannot be attributable to them.

We also find that there was no breach of sovereignty. Neither the Ugandan security agents nor the Ugandan Police were responsible for the arrest of the petitioners in Kenya and Tanzania.  The respective police forces of Kenya and Tanzania voluntarily arrested and surrendered the petitioners to the UgandaPolice.  On the part of the Ugandan Police officers, no force or deception was used in the arrests and surrender of the petitioners in the territory of Kenya or Tanzania.

We also find that there has been no demonstration or proof of any conspiracy or participation of the DPP of Uganda or Uganda Police in the evacuation of the petitioners from Kenya and Tanzania. There has been no violation by Ugandan security officers of the laws of Kenya or of Tanzania or of the respective territorial sovereignty of the three countries.

We also observe that that East African Community Treaty was domesticated by Kenya, Tanzania and Uganda. In Uganda, Parliament enacted the East African Community Treaty Act of 2002. By virtue of Statutory Instrument No. 29 of 2005, The East African Community Act (Commencement) Instrument, 2005, it came into force on January 15, 2005.  Article 124 of the Treaty (supra) enjoins Partner states to cooperate and consult on issues pertaining to peace and security, provision of mutual assistance in criminal matters including the arrest and repatriation of fugitive offenders. Kenya, Tanzania and Uganda decided to cooperate in this regard.

We therefore find that the Ugandan Police did not violate the Constitution of Uganda in receiving the petitioners.  Issues No. 6 is therefore resolved in the negative.  In light of this finding, we consider that the DPP did not violate the Constitution in prosecuting the petitioners of the offences with which they are charged. We therefore resolve issue Nos. 4, 5, 7 and 15 in the negative.

Issue No. 16-Remedies

The petitioners sought the declarations already referred to in this judgment.  We decline to make the declarations sought for the reasons already given in the judgment except for the declaration that the petitionerswho say they were detained beyond 48 hours before being taken to court may be entitled to compensation for the period they were detained beyond 48 hours. The amount due to each petitioner will be determined by the High Court after hearing the parties in appropriate proceedings.

Conclusion

Taking into account the totality of the issues that have been ventilated, and the full circumstances of the case, we conclude that this Petition only succeeds in as far as some of the petitioners have proved that they were detained beyond 48 hours prior to their being produced in court and charged. The assessment of their compensation for this illegal detention is referred to the High Court for determination under Article 135(5) of the Constitution.

Regarding allegations that four of the petitioners were tortured, and that confession statements were obtained from themthrough such torture, the matter is referred to High Court, which will make decisions after hearing the parties in appropriate proceedings.

The rest of the grounds in the consolidated Petitions, namely Constitutional Petition No. 55 of 2011 and Constitutional Petition No. 56 of 2011as laid out therein are dismissed save for the detention of the petitioners beyond 48 hours before being taken before court. The prayersmade including the prayer for stay of proceedings in the Criminal Division in High Court Criminal Case No. 001 of 2010 Uganda versus Hussein Hassan Agad and 14Othersare rejected for the reasons already given in the Judgment.

The Registrar is directed to remit High Court Criminal Case No. 001 of 2010 Uganda versus Hussein Hassan Agad and 14others back to the High Court for the trial of the petitioners to proceed.

For clarity and for avoidance of any doubt, the prayer for the stay of Criminal proceedings pending at the High Court against all the petitioners in High Court Criminal Case No. 001 of 2010 Uganda versus Hussein Hassan Agad and 14 others is rejected for the following reasons:

1. The discretion to stay proceedings must be exercised sparingly and carefully. Given the peculiar circumstances of this case we find no reason to justify a grant of the stay considering that:

1. The alleged abuse of the court proceedings involving all and/or each of the petitioners has not been conclusively established.
2. The offences with which all and each of the petitioners are/is charged with are serious and extremely grave.
3. The petitioners jointly and severally, judging from their alleged respective conduct, may pose a security threat to life and property here and elsewhere abroad.
4. The nature of the conduct of those involved in the deportation of the petitioners both in Kenya and in The United Republic of Tanzania is not in any way attributable to Uganda Police or any other Uganda State officials or agencies.
5. As for the 2^nd, 3^rd, 4^th, 6^th, 8^th, 9^th, 10^th, and 11^th Petitioners who were detained beyond 48 hours before being taken to court, the High Court shall consider the question of their redress in terms of Article 137(4) (b) of the Constitution. The period for which the 5^th and 7^th Petitioners were detained pre-remand shall also be established by the High Court.
6. The parties shall each bear their own costs.

Save as for what is herein above stated to the contrary, we decline to make the declarations prayed for by the petitioners.

We order accordingly.

 

 

Dated October 22^nd2014

 

Signed by

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HONORABLE MR. JUSTICE S B K KAVUMA JCC, AG. DCJ

 

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HONORABLE MR. JUSTICE REMMY K KASULE JCC

 

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HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA JCC

 

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HONORABLE JUSTICE PROFESSOR LILIAN E TIBATEMWA JCC