Wakilii

Kifampa & Another v Attorney General (MISCELLANEOUS CAUSE NO. 154 OF 2017)

High Court · [2020] UGHCCD 129 · 2020 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional enforcement application under Article 50 seeking declarations and remedies for alleged violations of fundamental rights during police raid on mosque
Decision
Application partly allowed. Police ordered to return all seized items to mosque administration. Mosque administration awarded UGX 50,000,000 compensation for violation of constitutional rights to religious freedom.

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Holding

The High Court held that the police raid on Nakasero Mosque on 27 December 2016 was unlawful and illegal because it was conducted without a search warrant or warrant card, in violation of Police Act s.27. The search violated the applicants' constitutional rights to privacy (Article 27) and religious freedom (Articles 29(1)(c) and 37), as the officers failed to respect the sanctity of the place of worship and conducted the search in a manner that desecrated religious artifacts and teachings. The court found no violation of Articles 23, 24, or 26, holding that temporary detention during the search was justified under Article 23(1)(c) and that claims of torture and property deprivation were not substantiated. The mosque administration was awarded UGX 50,000,000 as compensation and the return of all seized items.

Outcome

Application partly allowed. Police ordered to return all seized items to mosque administration. Mosque administration awarded UGX 50,000,000 compensation for violation of constitutional rights to religious freedom.

Facts

On 27 December 2016 at approximately 12:30 am, a combined team of security operatives raided Nakasero Mosque, the place of worship and headquarters of the Jamiyyat Daawa Assalafiyyah Muslim Community. The officers forcefully broke into the mosque without presenting a search warrant or warrant card. The 2nd applicant and other occupants were handcuffed, restrained, and detained. The security agents conducted a search of the premises, seizing documents, computers, mobile phones, motorcycles, money, and religious materials. The raid occurred during a murder investigation into the killing of Major Kiggundu and Sergeant Mukasa Stephen (Old Kampala CRB 1116/2016). Security operatives were allegedly directed to the mosque by a suspect, Nyende Ayub, who was in custody. The search was authorized by D/SSP Olal Johnson KMP CID Commander. The applicants filed a constitutional enforcement application alleging violations of their fundamental rights during the search and seizure operation.

Issues

  1. Whether the impugned conduct of the respondent's security personnel violated or threatened to violate the fundamental rights of the applicants and other members of the JSD Muslim community protected by Articles 23, 24, 26, 27, 29(1)(c) and 37 of the Constitution?
  2. Whether the impugned conduct of the respondent's security personnel is justifiable under the Constitution or any other law?
  3. Whether the applicants are entitled to the reliefs sought?

Orders

  • Declaration that the action of the respondent's agents (security operatives/police) of raiding, breaking into and ransacking Nakasero Mosque at dawn of 27th December 2016 without a search warrant or warrant card was unlawful and illegal.
  • Declaration that the actions of the respondent's agents (security operatives/police) during the unlawful and illegal search violated Article 29 and 37 of the Constitution.
  • Order that the respondent's agents (Uganda Police) must return all items that were taken from Nakasero Mosque during the illegal and unlawful search to the mosque administration (Jamiyyat Daawa Assalafiyyah Muslim Community).
  • Award of UGX 50,000,000 as compensation for the violation of the applicants' rights and all other Muslim faithfuls under Article 29 of the constitution. The compensation to be paid to Nakasero Mosque administration (Jamiyyat Daawa Assalafiyyah Muslim Community).
  • Costs of the application awarded to the applicants.

Rules and key headnotes

Constitutional Law — Right to Privacy — Police Searches — Mandatory Requirements under Police Act s.27
A police search conducted without a search warrant or warrant card, and without recording in writing the grounds for belief that evidence may be found, violates the mandatory requirements of Police Act s.27 and renders the search illegal and unlawful, regardless of whether there were reasonable grounds for suspicion.
Human Rights — Freedom of Religion — Protection of Places of Worship — Police Searches
A search on any place of worship must be conducted in a manner that does not desecrate the sanctity of the place and must respect known religious practices. A search that shows contempt or lack of reverence towards objects held sacred by a religious community, including the Holy Quran, artifacts, and religious teachings, violates the constitutional right to freedom of religion under Articles 29(1)(c) and 37 of the Constitution.
Human Rights — Right to Personal Liberty — Detention on Reasonable Suspicion
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. Where security operatives are conducting a murder investigation and are led to a location by a suspect in custody, the temporary detention of persons found at that location during a search is justified and does not violate the right to personal liberty, provided the suspicion is reasonable in the circumstances.
Criminal Law & Procedure — Police Powers — Search and Seizure — Procedural Safeguards
The power of search and seizure must be exercised strictly in accordance with the law. The Police Act imposes mandatory procedural safeguards including: recording in writing the grounds of belief; specifying the things to be searched for; obtaining a search warrant or warrant card; conducting the search in the presence of the occupant or a local leader; and immediately sending copies of all records to the nearest magistrate and the occupier. Failure to comply with these safeguards renders the search illegal.
Human Rights — Freedom from Torture and Inhuman Treatment — Burden of Proof
A claim of violation of the right to freedom from torture or inhuman treatment under Article 24 of the Constitution requires substantiation with evidence. The courts must apply a very strict test when considering whether there has been a breach of this right, and only the worst examples are likely to satisfy the test. Simple assault should not be categorized as torture or inhuman and degrading treatment — it is a tortious act of trespass to person.
Constitutional Law — Remedies for Human Rights Violations — Assessment of Damages
In awarding damages for human rights violations, courts should adopt a vindicatory approach modeled on tort principles. The value attached to different rights guides the amount of damages, with absolute rights such as freedom from torture being more highly valued than rights which can undergo balancing such as privacy or freedom of expression. Damages must be awarded according to the severity of the violation and actual losses suffered, and exaggerated claims reduce enforcement applications to commercialization of human rights rather than vindication of rights.

Legislation cited (24)

Cases cited (5)

  • Omar Awadh Omar and 10 Others v Attorney General (Consolidated Constitutional Petition No. 55 and 56 of 2011)
  • International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998)
  • Baguma-Mugarama v Uganda Revenue Authority (Civil Suit No. 93 of 2014)
  • R v. IRC, ex p. Rossminster Ltd [1980] AC 952, 1000
  • Fuelex (U) Ltd v Commissioner General Uganda Revenue Authority (HCCS No. 04 of 2010)

Full judgment

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

Kifampa & Another v Attorney General (MISCELLANEOUS CAUSE NO. 154 OF 2017) [2020] UGHCCD 129 (1 June 2020)
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.