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Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 53 of 2011)

Constitutional Court · [2020] UGCC 7 · 2020 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition for declarations brought under article 137(3) of the Constitution
Decision
Petition dismissed; the majority held the Constitutional Court lacked jurisdiction over the arrest and charging issue, and section 24 of the Police Act was upheld as constitutional

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Holding

The petitioner challenged the arrest and charging of 'walk to work' protesters with treason and the constitutionality of section 24 of the Police Act. The majority (Owiny-Dollo DCJ, Muhanguzi and Madrama Izama JJA) held that the first issue raised no question of constitutional interpretation and therefore fell outside the Constitutional Court's jurisdiction under article 137; redress lay before a competent court under article 50. Egonda-Ntende and Kasule JJA dissented, finding the arrests unconstitutional. The Court held that section 24, providing for preventive arrest, is not inconsistent with articles 23, 28, 29 and 38 when read with article 23(4)(b). The petition was dismissed, each party bearing its own costs.

Facts

In 2011, political activists organised 'walk to work' protests against economic hardship and corruption. The police, with the sanction of the DPP, arrested several prominent opposition figures — including Ingrid Turinawe Kamateneti, Sam Mugumya and Francis Mwijukye — and charged them with treason and concealment of treason under the Penal Code Act. Turinawe was arrested at the home of opposition leader Dr Kizza Besigye; Mwijukye and Mugumya were arrested in a taxi. The charge sheets alleged a plot to overthrow the government by force of arms through simultaneous riots, not peaceful demonstration. The accused were remanded at Luzira and later released on statutory bail after 180 days; they were never committed for trial and were eventually discharged for want of prosecution. The respondent's only rebuttal affidavit was deposed by an officer with no direct knowledge, which the court treated as inadmissible hearsay. The Foundation for Human Rights Initiative brought this petition as public interest litigation challenging the constitutionality of the arrests and charges and of section 24 of the Police Act.

Issues

  1. Whether the Constitutional Court has jurisdiction under article 137 to entertain the first issue, namely the arrest and charging of citizens with treason for participating in a peaceful demonstration.
  2. Whether the acts of arresting and charging citizens with treason and/or terrorism for a non-violent act of peaceful demonstration by walking to work contravene articles 28, 38, 43 and 44 of the Constitution.
  3. Whether section 24 of the Police Act (Cap 303), permitting the police to arrest and detain a citizen without charge or trial, is inconsistent with and contravenes articles 23, 28, 29 and 38 of the Constitution.

Orders

  • Section 24 of the Police Act is not inconsistent with or in contravention of articles 23, 28, 29 and 38 of the Constitution.
  • The Court (Egonda-Ntende and Kasule JJA/JJCC dissenting) has no jurisdiction to entertain the petition with regard to the arrest and charging in court of the complainants on whose behalf the petition was brought.
  • The petition is accordingly dismissed.
  • The parties shall bear their own costs of the petition.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 Interpretation versus Enforcement
The Constitutional Court has jurisdiction under article 137 only where the matter genuinely requires interpretation of a provision of the Constitution; an allegation under article 137(3) that an act, omission or law is inconsistent with the Constitution does not confer jurisdiction unless it discloses a real controversy as to the meaning of a constitutional provision.
Constitutional Law — Enforcement of Rights — Article 50 Competent Court
Where the enforcement of a fundamental right does not turn on the interpretation of the Constitution, the aggrieved party must seek redress before a competent court under article 50, and the Constitutional Court has no original jurisdiction to entertain the claim.
Constitutional Law — Police Act s.24 — Preventive Arrest
Section 24 of the Police Act, which authorises preventive arrest and detention on reasonable cause, is not inconsistent with articles 23, 28, 29 and 38 of the Constitution, provided it is read together with article 23(4)(b) requiring that a detained person be produced before court within forty-eight hours.
Criminal Law & Procedure — Arrest — Reasonable Suspicion and Abuse of Process
An arrest under article 23(1)(c) is lawful only where there exists reasonable suspicion, objectively established, that the person has committed or is about to commit an offence; initiating criminal proceedings without a lawful basis amounts to an abuse of the process of court.
Constitutional Law — Interpretation — Generous and Purposive Approach
The Constitution, and in particular its bill of rights, must be given a generous and purposive construction that avoids the austerity of tabulated legalism and secures to individuals the full benefit of their fundamental rights and freedoms.

Legislation cited (21)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.23(1)(c)
  • Constitution of Uganda 1995 art.23(4)(b)
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.29
  • Constitution of Uganda 1995 art.38
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.212
  • Constitution of Uganda 1995 art.274
  • Police Act Cap.303 s.24
  • Police Act Cap.303 s.25(2)
  • Penal Code Act Cap.120 s.23(1)(c)
  • Penal Code Act Cap.120 s.25
  • Government Proceedings Act s.15
  • Civil Procedure Rules Order 6 rule 29
  • Civil Procedure Rules Order 7 rule 11
  • Civil Procedure Rules Order 15 rule 1
  • Constitution of Uganda 1967 art.87
  • Constitution of Uganda 1967 art.88

Cases cited (23)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Joyce Nakacwa v Attorney General & Ors (Constitutional Petition No. 2 of 2001)
  • Asiimwe Gilbert v Barclays Bank Uganda Ltd (Constitutional Petition No. 22 of 2010)
  • Onyango Obbo v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 20 of 2006)
  • Paul K. Ssemwogerere & 2 Ors v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Osotraco Ltd (Civil Appeal No. 32 of 2002)
  • Fox Odoi-Oywelowo v Attorney General (Constitutional Petition No. 8 of 2003)
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Odonga Alex Oryang v Nabillah Naggayi Sempala (Constitutional Petition No. 9 of 2016)
  • Attorney General v Momodou Jobe [1984] AC 689
  • Unity Dow v Attorney General of Botswana [1992] LRC 623
  • Minister of Home Affairs v Fisher [1979] 3 All ER 21
  • R v Big M Drug Mart Ltd [1986] LRC 332
  • Handyside v United Kingdom [1976] ECHR 5
  • Oya Ataman v Turkey (ECHR App. No. 74552/01)
  • Ahmed Noormohmad Bhatti V State of Gujarat, AIR 2005
  • Attorney General v Kabourou [1995] 2 LRC 757
  • R v Westminster (City) London Borough Rent Officer, ex parte Rendall [1973] 3 All ER 119
  • Pyarali Abdu Ismail v Adrian Sibo (Constitutional Petition No. 9 of 1997)
  • Thornhill v Alabama 310 US 88 (1940)
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.