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Jamil Alilabaki Kyagulanyi and Others v Attorney General and Another (HCT-00-ICD-CM- 021 -2022)

High Court · [2025] UGHCICD 5 · 2025 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of human rights arising from criminal proceedings in ICD Criminal Case No. HCT-00-ICD-SC-001-2017
Decision
Application partly allowed with declarations of human rights violations but no termination of underlying criminal proceedings

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed most of the applicants' claims but found violations of their right to presumption of innocence through media parading and their right to personal liberty through detention beyond 48 hours and prolonged detention at Nalufenya Police Station. The Court held that the Human Rights (Enforcement) Act Cap. 12 could not be applied retroactively to events occurring before its 2019 enactment. The cumulative effect of the violations did not warrant termination of the underlying criminal proceedings. The Court declared the violations but dismissed prayers for acquittal, discharge, and damages, holding that compensation orders can only be made upon conviction under the Trial on Indictments Act.

Outcome

Application partly allowed with declarations of human rights violations but no termination of underlying criminal proceedings

Facts

The three applicants were extradited from Tanzania to Uganda in July 2015 to face murder charges. Upon arrival, they were detained at Nalufenya Police Station. The 1st Applicant was detained for 13 days before court appearance, the 2nd and 3rd Applicants for 9 days, all exceeding the constitutional 48-hour limit. After court appearances, all three were remanded at Nalufenya Police Station for over one year instead of a designated prison. They allege torture, inhuman treatment, and violations of multiple constitutional rights during detention. On July 17, 2015, the then Inspector General of Police publicly paraded them before the press, labelling them as ADF members and terrorists. They are charged in ICD Criminal Case No. HCT-00-ICD-SC-001-2017 with terrorism, murder, attempted murder, aggravated robbery, and membership in a terrorist organisation. Pre-trial proceedings concluded in September 2019, pleas were entered in January 2021, but the trial has not yet commenced. In October 2022, the applicants filed this application seeking declarations of rights violations and orders for acquittal, discharge, and compensation.

Issues

  1. Whether the Courts in Uganda have territorial jurisdiction to try the Applicants for offences alleged to have been committed outside Uganda.
  2. Whether the trial of the Applicants is null and void due to violations of the Extradition Act and the Speciality Rule.
  3. Whether the trial of the Applicants is null and void due to violations of fundamental human rights and other rights.
  4. Whether the Respondent violated the Applicants' right to freedom from torture, cruel or inhuman and degrading treatment or punishment.
  5. Whether the Respondents violated the Applicants' right to a fair hearing.
  6. Whether the Respondent violated the Applicant's right to personal liberty.
  7. Whether the Respondent violated the Applicant's right to own property.
  8. What remedies are available to the parties involved?

Orders

  • The preliminary objection regarding the pending Constitutional Reference No. 002 of 2024 is dismissed.
  • The plea of res judicata is dismissed.
  • The preliminary objection to strike off the 2nd Respondent is sustained.
  • Declaration that the Applicants' right to presumption of innocence was violated by being paraded before the press.
  • Declaration that the Applicants' right to personal liberty was violated by being detained for more than 48 hours before being produced before a court of law.
  • Declaration that the Applicants' right to personal liberty was violated by being detained at Nalufenya Police Station for over one year.
  • All other prayers for declarations are dismissed.
  • Prayers 1-7 seeking orders for striking out charges, discharge, acquittal, treatment, compensation, interest, and costs are dismissed.

Rules and key headnotes

Retroactive Application of Legislation — Human Rights (Enforcement) Act
The Human Rights (Enforcement) Act Cap. 12, which came into effect on November 15, 2019, cannot be applied retroactively to alleged human rights violations that occurred before its enactment unless the Act expressly provides for retrospective effect. Section 14 of the Acts of Parliament Act Cap. 1 establishes that an Act can have retrospective effect only if explicitly stated, and where an Act affects substantive rights, it will not be construed to have retrospective operation unless a clear intention to that effect is manifested.
Pre-Trial Proceedings — Functus Officio Doctrine — Binding Effect of Pre-Trial Orders
Under Rules 7(1)(e) and 9(2) of the Judicature (High Court) (International Crimes Division) Rules 2016, a pre-trial order issued by a pre-trial judge is binding on the parties and controls the course of the action during trial unless modified by the trial judge to prevent manifest injustice. Once a pre-trial judge has ruled on an issue such as the legality of extradition and the applicability of the speciality rule, the trial court becomes functus officio regarding that issue and cannot revisit it without effectively appealing the pre-trial judge's decision, which is prohibited by Rule 9(2).
Right to Personal Liberty — 48-Hour Rule — Detention at Police Stations After Court Remand
Article 23(4) of the Constitution requires that a person arrested on reasonable suspicion of having committed a criminal offence must be brought to court within 48 hours. Once a person has been produced before a court and remanded, they can only be lawfully detained in a gazetted prison, not at a police station. Section 166 of the Magistrates Court Act empowers magistrates to remand accused persons in custody but does not specify detention at police stations. The Prisons Act Cap. 325 defines a prisoner as a person duly committed to prison custody under a court order. Detention at a police station after court remand violates Article 23(2) of the Constitution, which requires detention in a place authorised by law.
Presumption of Innocence — Public Statements by State Officials
Article 28(3)(a) of the Constitution guarantees that every person charged with a criminal offence shall be presumed innocent until proven guilty or until they have pleaded guilty. Public officials violate this right when they publicly parade accused persons before the media and make statements implying guilt before conviction. Such conduct prejudices the accused's right to a fair trial and undermines the presumption of innocence, even though it does not necessarily render the subsequent trial a nullity if the court can still render an impartial decision based solely on evidence presented at trial.
Burden of Proof in Torture Allegations — Credibility Threshold
While international law recognises that the burden of proof shifts to the state to disprove torture once a credible allegation has been made, the applicant must first present credible evidence sufficient to shift the evidentiary burden. Mere assertions in affidavits, without corroborating medical evidence or contemporaneous complaints, and particularly where the allegations are raised for the first time years after the alleged events and were not raised during earlier pre-trial proceedings when co-accused raised similar allegations, may fail to meet the credibility threshold required to shift the burden to the state.
Right to Speedy Trial — Factors for Assessment — Institutional Resource Constraints
The right to a speedy trial under Article 28(1) of the Constitution is not defined by a fixed time limit but must be assessed considering multiple factors including: the length of delay, reasons for delay, whether the accused asserted the right timeously, prejudice to the accused, whether the accused's actions contributed to delay, limits on institutional resources, and inherent time requirements of the case. In complex atrocity crime cases involving international elements such as extradition, committal proceedings, and pre-trial proceedings under ICD Rules, and where delays are attributable to court resource constraints rather than prosecutorial or defence conduct, a delay of approximately 10 years from arrest to trial may not violate the right to speedy trial.
Remedies for Rights Violations — Compensation Orders in Criminal Proceedings
A High Court constituted as a criminal court does not have the power to assess and award damages for human rights violations. The court's mandate is limited to imposing compensation orders under Section 125(1) of the Trial on Indictments Act and Rule 48 of the Judicature (High Court) (International Crimes Division) Rules 2016, which can only be exercised upon conviction of the accused where it appears from evidence that a person has suffered material loss or personal injury in consequence of the offence committed. Declarations of rights violations may be made, but monetary compensation cannot be awarded in the absence of conviction.

Legislation cited (36)

Cases cited (60)

  • Re Nielsen (1984) AC 606
  • US v Kwok (2001) 1 SCR 532
  • United States v Rousher, 119 U.S 407 (1886)
  • State of Washington v Martin Shaw Pong No. 64786-1, Supreme Court of Washington (1997)
  • Salem Abdul Qayoom v CBI (2011) 11 S.C 214
  • Robert Asiimwe Akonga & Kalemba Stevens v AG (Miscellaneous Application No. 7 and 8 of 2022)
  • Kanyamunyu Mathew Muyogoma v Uganda (Criminal Miscellaneous Application No. 151 of 2020)
  • Lewis v Attorney General of Jamaica [2001] 2 AC 50
  • Attorney General v Susan Kigulo & Others (Constitutional Appeal No. 3 of 2006)
  • Shabahuria Matia v Uganda (MSK-00 CR 5 of 1999)
  • Dr Kizza Besigye & Others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Mukiso Biscuit Manufacturing Ltd v West End Distributors Ltd [1969] EA 697
  • El Busaidy v Commissioner of Lands and others [2002] 1 KLR 508
  • Kintu Nteza Felix v Uganda (Criminal Miscellaneous Application No. 10 of 2023)
  • Kario & Anor v Attorney General & Others [2005] 1 EA 83
  • Karshe v Uganda Transport Limited (1967) E.A.774
  • Regina v Miles (1890) 24 Q.B.D. 423
  • United States v Butler 38 F. 498 (1889)
  • Makorongo v Consigilio [2005] 1 EA 247
  • Uganda N'Eddagala Lyayo The National Traditional Healers and Herbalists Association Ltd & Anor v Saazi Marvins & 3 Ors (Miscellaneous Application No. 2376 of 2023)
  • Major (Rtd) Roland Kakooza Mutale v Balisigara Stephen (CA Consolidated Civil Applications Nos. 121 and 277 of 2020)
  • Egwedi Bosil v Eroku James (HC Civil Application No. 28 of 2012)
  • Ireland v United Kingdom (ECHR Application No. 5310/71)
  • Kudla v Poland (ECHR Application No. 30210/96)
  • Pretty v United Kingdom (ECHR Application No. 2346/02)
  • Llewellyn Smith & 4 Ors v The Minister of Justice and Correctional Services (Case No. 21639/2015)
  • Wainwright v United Kingdom (ECHR Application No. 12350/04)
  • Issa Wazembe v Attorney General (HCCS No. 154 of 2016)
  • Paul Mugoya Wanyoto v Sgt Ouma & AG (Civil Appeal No. 91 of 2021)
  • Sirusi Bituitanu v Kananuzi [1977] HCB 34
  • Haba Group (U) Limited v The Commissioner General URA & Another (Miscellaneous Cause No. 83 of 2011)
  • Nsereko v Attorney General & 16 Ors (Miscellaneous Cause No. 386 of 2020)
  • International Pen and Ors v Nigeria (2000) AHRLR 212
  • Shapiro v Ferrandina, 478 F.2d 894 (2d Cir. 1973)
  • United States v Reed, 639 F.2d 896 (2d Cir. 1981)
  • Suarez v. United States (2015)
  • Barker v Wingo, 407 U.S. 514 (1972)
  • Anyolitho v Uganda (Criminal Appeal No. 22 of 2012)
  • Petrus Bothnia v Petrus Arnoldus Els & Anor (2009) ZACC 27
  • R v Incedal [2016] EWCA Crim 6
  • Mohammed Abdullah Saleh v Ministry of Home Affairs [2001] 2 EA 200
  • R v Jordan [2016] 1 S.C.R. 63
  • Shabuhuria Matia v Uganda (Criminal Revisional Cause No. 5 of 1999)
  • Uganda v Hussein Hassan Agade & 12 Others (Criminal Session Case No. 0001 of 2010)
  • Uganda v Thomas Kwoyelo alias Latoni (Criminal Case No. 002 of 2010)
  • Uganda Court Reporters Association v Attorney General (High Court Miscellaneous Cause No. 87 of 2014)
  • Djot Bayi & 14 Others v Nigeria & 4 Others (ECW/CCJ/JUD/01/09)
  • Charles Haruy Twagira v Attorney General (Civil Suit No. 861 of 1998)
  • Maloba v. Attorney General [1979]
  • Ssejemba v Attorney General (Constitutional Petition No. 37 of 2014)
  • Turkish Airlines Inc v KK Fresh Produce Exporters Limited & 2 Ors (Miscellaneous Application No. 755 of 2023)
  • Attorney General v David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Stanbic Bank Uganda Ltd v Uganda Revenue Authority (Miscellaneous Application No. 42 of 2010)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Tokhar v Gracefield Developments Ltd & Ors [2019] UKSC
  • Henderson v Henderson (1843) 3 Hare 100
  • Virgin Atlantic Airways Ltd v Zodiac Seats (UK) Ltd [2014] AC 160
  • Arnold v. National Westminster Bank Plc [1991] 93
  • Okupa v AG & 13 Ors (H.C.M.C No. 14 of 2005)
  • Paul Byekwaso v AG (Civil Appeal No. 10 of 2002)

Full judgment

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Jamil Alilabaki Kyagulanyi and Others v Attorney General and Another (HCT-00-ICD-CM- 021 -2022) [2025] UGHCICD 5 (23 June 2025)
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.