Wakilii

Obongo v Attorney General (Miscellaneous Cause No. 224 of 2021)

High Court · [2022] UGHCCD 255 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of fundamental rights and freedoms under Articles 22, 23, 24, 26, 29, 37, 44(c) and 50 of the Constitution
Decision
Application allowed with declarations and orders for damages, exhumation and handover of body, interest and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the arrest and incommunicado detention of nine persons for ten days without being informed of reasons for arrest, without access to lawyers or next of kin, and without being brought promptly before court violated their constitutional rights under Articles 23 and 24. The unlawful killing of Remizio Okello by state agents and the refusal to release his body for burial violated his right to life and the victims' right to practice their culture and customs. The Attorney General was held vicariously liable. General damages of UGX 20,000,000 awarded to each of the nine victims and exemplary damages of UGX 100,000,000 awarded against the state.

Outcome

Application allowed with declarations and orders for damages, exhumation and handover of body, interest and costs

Facts

On 24 April 2021, soldiers from Lira Garrison and police officers from Oyam Central Police Station arrested nine persons from Wigweng village, Oyam District. During the arrest, the officers shot and killed Remizio Okello and took away his body. The nine arrested persons were not informed of the reasons for their arrest, were detained incommunicado at Lira Police Station for ten days without access to lawyers or next of kin, and were only brought to court on 4 May 2021 when they were charged with aggravated robbery. The body of the deceased was never released to his relatives for burial in accordance with Luo customs. The applicant, a cousin/nephew to the arrested persons, brought this application seeking enforcement of their fundamental rights and freedoms.

Issues

  1. Whether the named rights and freedoms of the victims were violated as alleged in the application?
  2. Whether the Respondent is vicariously liable for the violation?
  3. What remedies are available to the Applicant/Victims?

Orders

  • A declaration that the acts by the Respondent's agents and/or servants of arresting and detaining the subject persons or victims incommunicado violated their fundamental human rights and freedoms.
  • A declaration that the act by the Respondent's agents and/or servants of unlawfully killing one Remizio Okello violated his right to life under Article 22(1) of the Constitution of Uganda.
  • A declaration that the act by the Respondent's agents and/or servants of refusing to handover the body of the late Remizio Okello to his relatives or next of kin violated the victims' right to accord the deceased person a decent and dignified burial at his ancestral grounds in accordance with his culture and customs under Article 37 of the Constitution of Uganda.
  • The Respondent doth cause the exhumation and hand over of the body of the late Remizio Okello to his relatives for a dignified burial at his ancestral burial grounds in accordance with their culture and customs.
  • The Respondent shall pay a sum of UGX 20,000,000 in general damages to each of the 09 (nine) subject persons or victims.
  • The Respondent shall pay a sum of UGX 100,000,000 as exemplary damages in favour of the Applicant and other victims.
  • The Respondent shall pay interest on the awarded sums at a rate of 10% per annum from the date of judgement until payment in full.
  • The Respondent shall pay the taxed costs of this suit to the Applicant.

Rules and key headnotes

Right to be Informed of Reasons for Arrest — Constitutional Requirement under Article 23(3)
A person arrested or detained must be informed immediately, in a language that the person understands, of the reasons for arrest, and failure to do so constitutes a violation of Article 23(3) of the Constitution.
Right to Prompt Access to Lawyer and Notification to Next of Kin — Incommunicado Detention
Detaining persons incommunicado without access to lawyers or notification to and access by next of kin violates the constitutional rights guaranteed under Article 23(3) and Article 23(5)(a) and (b) of the Constitution.
Right to be Brought Promptly to Court — 48-Hour Rule
A person arrested or detained upon reasonable suspicion of having committed or being about to commit a criminal offence must, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of arrest, as required by Article 23(4)(b) of the Constitution and Section 25(1) of the Police Act.
Freedom from Torture — Incommunicado Detention as Mental or Psychological Torture
Confining a victim incommunicado, in a secret detention place or other form of detention constitutes torture of a mental or psychological nature under item 2(c) of the second schedule to the Prevention and Prohibition of Torture Act 2012, and violates the non-derogable right under Article 24 of the Constitution.
Right to Life and Right to Practice Culture and Customs — Refusal to Release Body for Burial
The unlawful killing of a person by state agents violates the right to life under Article 22(1) of the Constitution, and the refusal to hand over the body to relatives for a decent and dignified burial in accordance with their culture and customs violates Article 37 of the Constitution.
Vicarious Liability — Government Liability for Acts of Servants and Agents
Under Section 3(1) of the Government Proceedings Act, the Government is subject to all liabilities in tort to which a private person of full age and capacity would be subject in respect of torts committed by its servants or agents acting in the ordinary course of their employment, even if the acts are done contrary to orders, deliberately, wantonly, negligently, or criminally, provided the acts are a manner of carrying out what the servant or agent was employed to carry out.
Exemplary Damages — Oppressive and Unconstitutional Action by Government Servants
Exemplary damages may be awarded where there has been oppressive, arbitrary, or unconstitutional action by the servants of the government, and the purpose is to punish the defendant and deter repetition of the wrongful act, not to enrich the plaintiff.

Legislation cited (30)

Cases cited (22)

  • Right Trumpet & 2 Ors vs AIGP Asan Kasingye & 5 Ors
  • Mucunguzi Abel & 9 Ors v Attorney General and 2 Ors (Miscellaneous Cause No. 17 and 003 of 2017)
  • Ponsiano Semakula Vs Susane Magala & Ors, 1993 KALR 213
  • Maniraguha Gashumba v Sam Nkundiye (Civil Appeal No. 23 of 2005)
  • Bithum Charles v Adoge Sally (High Court Civil Suit No. 20 of 2015)
  • Ganatra v Ganatra [2007] 1 EA 76
  • Karia & Another v Attorney General & Ors [2005] 1 EA 83
  • Attorney General & Anor v Charles Mark Kamoga (Miscellaneous Application No. 1018 of 2015)
  • CEHURD & 2 Ors v The Executive Director Mulago Hospital (High Court Civil Suit No. 212 of 2013)
  • Muwonge v. Attorney General [1967] EA 17
  • Kaggwa Vincent v Attorney General (High Court Civil Suit No. 391 of 2014)
  • Hannington Mpala & 2 Ors v Attorney General (High Court Civil Suit No. 116 of 2012)
  • Mugabi John v Attorney General (High Court Civil Suit No. 133 of 2002)
  • Uganda Commercial Bank v Kigozi [2002] EA 305
  • Mugenzi V Attorney General [1984] HCB 64
  • AG V Hajji Adam Farajara [1977] HCB 29
  • Hadley v. Baxendale (1894) 9 Exch 341
  • Charles Acire v M. Engola (High Court Civil Suit No. 143 of 1993)
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • Ochwa v Attorney General (High Court Civil Suit No. 41 of 2012)
  • Butterworth v Butterworth & Englefield [1920] P 126
  • Rookes v Barnard [1946] ALLER 367

Full judgment

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Obongo v Attorney General (Miscellaneous Cause No. 224 of 2021) [2022] UGHCCD 255 (12 December 2022)
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.