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In Re Muhindo Herbert & 6 Ors (HCT) [2012] UGHC 96

High Court · 2012 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for writ of habeas corpus ad subjiciendum challenging continued detention after remand by General Court Martial
Decision
Applicants ordered released immediately from unlawful detention

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the writ of habeas corpus, holding that the applicants' detention was unlawful. The Court found that the applicants were detained beyond 48 hours before being charged, violating Article 23(4) of the Constitution. Their continued detention for over one year without trial violated the non-derogable right to a fair and speedy hearing under Article 28(1). As civilians charged with firearms offences and not jointly charged with UPDF members, the General Court Martial lacked jurisdiction to try them under Uganda Law Society v Attorney General. The High Court is empowered under Judicature Act s.34 to intervene where detention is unlawful.

Outcome

Applicants ordered released immediately from unlawful detention

Facts

The six applicants, all civilians, were arrested by police in Kasese District in January and February 2011. They were detained for over six weeks before being charged with illegal possession of firearms before the General Court Martial at Makindye on 6 April 2011 and 5 May 2011. They were remanded to Kigo Prison. The General Court Martial ordered their transfer to the Second Division Court Martial in Mbarara, and they were transferred to Mbarara Central Prison on 3 July 2011. From that date until the application was heard in May 2012, the applicants had not been produced before any court nor had any trial commenced. They were not jointly charged with any UPDF members. The State did not rebut the applicants' depositions regarding their continued detention without trial.

Issues

  1. Whether the Applicants are in unlawful detention.
  2. Whether the High Court is empowered to intervene in the detention ordered by the General Court Martial.
  3. Whether the orders sought can be obtained in this application.

Orders

  • An order for the immediate release of all the Applicants is granted.
  • The Applicants are awarded costs of the application.
  • The Applicants are at liberty to pursue compensation for their unlawful detention in accordance with Article 23 of the Constitution and/or any other relevant law.

Rules and key headnotes

Habeas Corpus — High Court Jurisdiction — Power to Intervene in Detention by Military Courts
The High Court is empowered under Judicature Act s.34 to intervene at any time where a person is deprived of personal liberty otherwise than in execution of a lawful sentence or order imposed by a competent court, including where a person is detained at the behest of the General Court Martial. Such intervention does not oust the jurisdiction of the Court Martial but enforces constitutional rights where detention is unlawful.
Arrest and Detention — Constitutional Time Limits — Effect of Breach
Where persons are arrested and detained for one month and three weeks before being brought before a court, in breach of the 48-hour limit under Article 23(4) of the Constitution, such detention amounts to unlawful detention and false imprisonment.
Fair and Speedy Trial — Detention Without Trial for Over One Year
Detention of a person for more than one year without ever being tried or being brought before any court to know their fate constitutes a gross violation of the non-derogable right to a fair and speedy trial under Articles 28(1) and 44 of the Constitution, rendering the otherwise lawful detention ultimately unlawful.
Court Martial Jurisdiction — Trial of Civilians — Limits Under Uganda Law Society Case
Following Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005), civilians who are not jointly charged with members of the armed forces and who are charged with offences under the Firearms Act rather than service offences cannot be tried by the Court Martial. The General Court Martial is not a competent court in respect of such civilians.
Constitutional Interpretation — Enforcement by High Court After Constitutional Court Ruling
Once the Constitutional Court has pronounced on the constitutionality of a matter, such pronouncements assume the character of constitutional provisions, and there is no need to make further references to the Constitutional Court each time a similar matter comes up. The High Court is empowered to enforce the rights of parties following upon the Constitutional Court's pronouncements without assuming the jurisdiction of the Constitutional Court.
Abuse of Process — Effect of Constitutional Rights Violations on Prosecution
No lawful prosecution can flow from illegal detention and violations of basic constitutional rights. An unexplained violation of the constitutional rights of accused persons will normally result in their release irrespective of the nature and strength of evidence that could have been or may be adduced against them. Courts have a duty to refuse to allow prosecuting authorities to take advantage of abuse of power by regarding their behaviour as an abuse of process.

Legislation cited (12)

Cases cited (9)

  • Muzoora Amon R K v NRM & 2 Ors (High Court Miscellaneous Cause No. 0201 of 2010)
  • Ssali Godfery v Electoral Commission and Kabaale Sulaiman (Election Petition No. 13 of 2011)
  • Haman Singh Bhogal T/a Hamam Singh & Co v Jauda Karsan (1953) 20 EACA 17
  • Masa v Achen [1978] HCB 297
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Kibaya v Uganda (Constitutional Reference No. 28 of 2008)
  • Albanus Mwasia Mutua v. Republic (of Kenya) Criminal Appeal No. 120/2004
  • Dr Kiiza Besigye and Ors v Attorney General (Constitutional Petition No. 7 of 2007)
  • R v. Horseferry Road Magistrates Exparte Bennet (1994) I A.C. 42

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

In Re Muhindo Herbert & 6 Ors (HCT) [2012] UGHC 96 (29 May 2012)
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.