Wakilii

Kiwanuka and 17 Others v The Director General of Internal Security Organisation and Others (Misc Cause No. 9 of 2021)

High Court · [2021] UGHCCD 225 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for writ of habeas corpus seeking production of detainee before court
Decision
Writ of habeas corpus issued directing respondents to produce the 14th Applicant before a competent court

Observed later treatment

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Holding

Held that where a person is arrested by individuals in military attire and detained without being charged or produced before a competent court within the constitutional timeframe, and the detaining authorities fail to provide evidence of lawful detention or the detainee's whereabouts despite service of the application, a writ of habeas corpus ad subjiciendum will issue requiring production of the detainee before a competent court to test the validity of the detention.

Outcome

Writ of habeas corpus issued directing respondents to produce the 14th Applicant before a competent court

Facts

Eighteen applicants were allegedly arrested between 8 and 14 January 2021 in Kyotera District by unknown men dressed in military fatigue using vehicles described as drones and double cabins. The arrest occurred during a political season. On 22 March 2021, seventeen applicants were released by unknown people in Kyotera. The 14th Applicant, Kasumba George, a business person from Kisamula Village, remained missing. His family made efforts to establish his whereabouts in vain. None of the applicants had been charged in any competent court since the alleged arrest. The respondents were served with the application but filed no affidavits in reply. No evidence was produced showing the 14th Applicant had been arraigned before a competent court or charged with any offence. The President had publicly acknowledged in February 2020 that some people had been arrested by security personnel.

Issues

  1. Whether the court should grant a writ of habeas corpus ad subjiciendum in respect of the 14th Applicant (Kasumba George) who remained missing after the other applicants were released.
  2. Whether the detention of the Applicant by persons in military attire constitutes illegal detention by agents of the Respondents.
  3. Whether a writ of habeas corpus can issue where the exact place of detention is unknown.

Orders

  • Application granted.
  • An order of a writ of habeas corpus ad subjiciendum is hereby issued directing the Respondents to produce the 14th Applicant Kasumba George before a competent court.
  • Costs of the application are granted to the Applicant.

Rules and key headnotes

Constitutional Law — Personal Liberty — Right to Habeas Corpus — Inviolability
The right to an order for habeas corpus is inviolable under Article 23(9) of the Constitution and shall not be suspended.
Administrative Law — Habeas Corpus — Place of Detention Need Not Be Known
Rule 3(4)(c) of the Judicature (Habeas Corpus) Rules provides that an application shall mention the place where the applicant is restrained, if known. It is not a strict requirement that the place where the applicant is restrained should be known for a writ to issue.
Human Rights — Personal Liberty — Detention Without Charge — Constitutional Breach
The right to personal liberty guaranteed by Article 23 of the Constitution requires that suspects under detention be brought before a competent court within 48 hours of detention. Failure to do so constitutes illegal detention.
Administrative Law — Habeas Corpus — Purpose and Scope
The purpose of a writ of habeas corpus is to require the production before the court of a person who claims to be unlawfully detained so as to test the validity of the detention and ensure release from unlawful restraint. The writ is directed to persons alleged to be responsible for the unlawful detention and is a means whereby the most humble citizen may test the action of the executive government no matter how high the position of the person who ordered the detention.
Criminal Law & Procedure — Arrest by Military Personnel — Agency and Responsibility
Where persons are arrested by individuals dressed in military fatigue during operations, and wearing military fatigue is preserved for the armed forces, such individuals may be identified as agents of state security organs for purposes of establishing responsibility for detention.
Administrative Law — Habeas Corpus — Burden of Proof on Detaining Authority
Where an application for habeas corpus is properly served on respondent detaining authorities and they fail to file affidavits in reply or produce evidence showing lawful detention or that the detainee was arraigned before a competent court, the court will grant the writ and order production of the detainee.

Legislation cited (10)

Cases cited (3)

  • Jovia Karuhanga v Inspector General of Police (Misc Application No. 86 of 2013)
  • Uganda v Commissioner of Prison (ex parte Matovu) (1966) EA 514
  • Grace Struat Ibringira & others v Uganda [1966] EA 445

Full judgment

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

Kiwanuka and 17 Others v The Director General of Internal Security Organisation and Others (Misc Cause No. 9 of 2021) [2021] UGHCCD 225 (7 April 2021)
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.