Wakilii

Behangana & Another v The Attorney General (Constitutional Petition 53 of 2010)

Constitutional Court · [2015] UGCC 94 · 2015 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 alleging contravention of constitutional rights and the unconstitutionality of section 25(3) of the Police Act
Decision
Petition allowed in part; declarations of constitutional violation granted and section 25(3) of the Police Act upheld; question of compensation referred to the High Court

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Holding

The Court held it had jurisdiction under Article 137 because the petition pleaded the impugned acts, the constitutional provisions allegedly contravened, and sought declarations. On the merits it declared that the police's arrest and detention of the petitioners without charge, their incommunicado detention, assault amounting to torture, warrantless search of their home, and seizure and retention of their property contravened Articles 23, 24, 27 and 26. It declined to find section 25(3) of the Police Act unconstitutional, holding that charging a person held beyond 48 hours is not per se unconstitutional. The petition was allowed in part with costs, and the question of compensation was referred to the High Court under Article 137(4)(b).

Facts

The petitioners are spouses. The first petitioner, a Mbarara businessman dealing in motorcycle spare parts, was arrested by police on 3 July 2010, beaten with batons, and had money, a vehicle, phones and business inventory seized; the property was never returned. He was accused of knocking down a policeman and robbing him of a gun, which he denied. He was detained incommunicado for over a month, and when the Chief Magistrate ordered his release on bail the police ignored the order and moved him out of the court's jurisdiction to Kampala, where he was held until habeas corpus proceedings led to his release on police bond. The second petitioner was arrested at home around 3.00am on 2 July 2010 by police who searched the home without a warrant, beaten, held incommunicado, never charged, and released on 13 July 2010. The respondent offered no evidence to contradict the petitioners' affidavits and relied only on a preliminary point of law.

Issues

  1. Whether the petition raised a question for constitutional interpretation under Article 137 so as to vest jurisdiction in the Constitutional Court.
  2. Whether the arrest and detention of the petitioners without charge contravened the Constitution.
  3. Whether holding the petitioners incommunicado and denying access to next of kin and lawyers contravened Article 23.
  4. Whether the assault on the petitioners during arrest and in custody contravened Article 24.
  5. Whether the search of the petitioners' home without a warrant contravened Article 27.
  6. Whether the seizure and continued retention of the petitioners' property contravened Article 26.
  7. Whether releasing the first petitioner on police bond during pending habeas corpus proceedings was unconstitutional.
  8. Whether section 25(3) of the Police Act is inconsistent with the Constitution.

Orders

  • Preliminary point of law dismissed with costs.
  • Declaration that the arrest and detention of the petitioners contravened Article 23 and that the police failed to comply with Article 20(2).
  • Declaration that holding the petitioners incommunicado contravened Article 23(3), (5)(a) and (b).
  • Declaration that the assault on the petitioners contravened Article 24.
  • Declaration that ignoring the Chief Magistrate's bail order and moving the first petitioner out of jurisdiction violated Articles 23, 20(2) and 128(3).
  • Declaration that the warrantless search of the petitioners' home contravened Article 27(1)(a).
  • Declaration that the seizure and retention of the petitioners' property contravened Article 26.
  • Declaration sought regarding release on police bond declined.
  • Order of injunction declined.
  • Section 25(3) of the Police Act held not unconstitutional.
  • Petition allowed in part with costs.
  • Question of compensation for special, general, exemplary and aggravated damages referred to the High Court for hearing and determination.
  • Registrar directed to serve copies of the judgment on the Director of Public Prosecutions and Inspector General of Police to investigate and report within six months.

Key headnotes

Constitutional Law — Jurisdiction — Article 137 — Disclosure of a cause of action in a constitutional petition
A petition under Article 137(3)(b) discloses a cause of action and falls within the Constitutional Court's jurisdiction where it describes the impugned acts or omissions, cites the constitutional provisions alleged to be contravened, and prays for a declaration to that effect.
Human Rights — Personal Liberty — Article 23 — Arrest and detention without charge
Arrest and detention of a person without a charge being preferred before a competent court within 48 hours, where none of the exceptions in Article 23 is established, is an unconstitutional infringement of the right to personal liberty.
Human Rights — Personal Liberty — Article 23(3),(5) — Incommunicado detention
Holding a detained person incommunicado and denying next of kin, relatives and lawyers reasonable access to that person contravenes Article 23(3) and (5)(a) and (b).
Human Rights — Human Dignity — Article 24 — Torture and inhuman treatment
Assault and beating of a person during arrest and while in police custody amounts to torture and to cruel, inhuman and degrading treatment in contravention of Article 24.
Human Rights — Privacy and Property — Articles 27 and 26 — Warrantless search and seizure of property
A search of a home without a search warrant or court order, where no permitted exception is justified, contravenes Article 27(1)(a), and the seizure and continued retention of personal and business property unlawfully interferes with the right to own property under Article 26.
Statutory Interpretation — Police Act s.25(3) — Charging a person held beyond 48 hours
Securing the liberty of a person held in custody and preferring criminal charges are distinct matters governed by different constitutional provisions; preferring charges against a person who has been held beyond 48 hours is not per se unconstitutional, and section 25(3) of the Police Act is not inconsistent with the Constitution.
Constitutional Law — Remedies — Article 137(4)(b) — Reference of compensation to the High Court
Where a claim for compensation requires viva voce evidence to assess quantum, the Constitutional Court, which relies mainly on affidavit evidence, may direct under Article 137(4)(b) that the High Court hear and determine the question of compensation.

Legislation cited (10)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 50
  • Constitution of Uganda Article 23
  • Constitution of Uganda Article 24
  • Constitution of Uganda Article 26
  • Constitution of Uganda Article 27(1)(a)
  • Constitution of Uganda Article 20(2)
  • Constitution of Uganda Article 128(3)
  • Police Act Cap 303 s.25(3)
  • Police Act Cap 303 s.25

Cases cited (3)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Baku Rapheal and Another v Attorney General (Constitutional Appeal No. 1 of 2003)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.