Wakilii

RA 65008 W011 Atunga Bantu and 7 Others v Director Public Prosecutions and Story (Miscellaneous Cause No. 247 of 2017)

High Court · [2021] UGHC 49 · 2021 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional application seeking declarations for violation of rights following withdrawal of treason charges
Decision
Application partly allowed; DPP struck out as respondent; applicants awarded damages for violation of right to personal liberty but failed to prove torture allegations

Observed later treatment

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Holding

The High Court held that the Director of Public Prosecutions cannot be sued as it is not a body corporate. The applicants failed to prove allegations of torture on a balance of probabilities due to lack of corroborating evidence. However, the court found that detention of the applicants in ungazetted military facilities beyond the mandatory 48-hour period violated their constitutional right to personal liberty under Article 23(2). The court awarded each applicant UGX 10,000,000 in damages for the violation of their right to personal liberty.

Outcome

Application partly allowed; DPP struck out as respondent; applicants awarded damages for violation of right to personal liberty but failed to prove torture allegations

Facts

Eight applicants were arrested by military personnel and detained in ungazetted military facilities for periods ranging from 7 to 29 days. They were subsequently charged with treason and concealment of treason in Criminal Session Case No. 45 of 2012. The applicants were remanded and later granted bail with stringent conditions requiring monthly appearances in Kampala. After approximately eight years, the Director of Public Prosecutions withdrew the charges on 19 February 2018. The applicants filed a constitutional application alleging violations of their rights including illegal detention, torture, and denial of a speedy trial. They claimed they were tortured while in military custody, subjected to various forms of physical abuse, and detained beyond the constitutional 48-hour limit before being produced in court.

Issues

  1. Whether the Director of Public Prosecutions can be sued.
  2. Whether the decision of the DPP in commencing and continuing prosecution violated the applicants' constitutional rights.
  3. Whether the applicants' constitutional guarantee to freedom from torture, cruel, inhuman and degrading treatment was violated by the respondents.
  4. Whether the applicants' constitutional guarantee to right to personal liberty was violated by the respondents.
  5. Whether the applicants are entitled to the remedies sought.

Orders

  • Case against the Director of Public Prosecutions struck out.
  • Court finds that the applicants' right to personal liberty under Article 23(2) of the Constitution was violated.
  • Each applicant awarded UGX 10,000,000 as damages for violation of personal liberty.
  • Applicants awarded costs of the case.

Rules and key headnotes

Constitutional Law — Legal Capacity — Director of Public Prosecutions — Capacity to Sue or Be Sued
The Director of Public Prosecutions is not a body corporate and does not have the legal capacity to sue or be sued; proceedings should be brought against the Attorney General instead.
Human Rights — Freedom from Torture — Burden of Proof — Corroborating Evidence
Allegations of torture must be proved on a balance of probabilities with corroborating evidence such as medical reports, photographs of scars, or witness statements; sworn affidavits alone, without supporting evidence, are insufficient to establish torture.
Constitutional Law — Right to Personal Liberty — Detention Beyond 48 Hours — Ungazetted Places
Detention of civilians in ungazetted military facilities beyond the mandatory 48-hour period without production before a court of competent jurisdiction violates the constitutional right to personal liberty under Article 23(2) of the Constitution.
Criminal Law & Procedure — Arrest and Detention — Military Arrest of Civilians — Duty to Hand Over to Police
The functions of the military under Article 209 of the Constitution do not include arresting civilians for civil offences, and arrested persons must be handed over to police as soon as practicable under section 16(1) of the Criminal Procedure Code.
Administrative Law — Prosecutorial Discretion — Abuse of Legal Process — Burden of Proof
The Director of Public Prosecutions exercises constitutional prosecutorial discretion in instituting and continuing criminal proceedings; abuse of legal process must be established by proving that the prosecution was conducted in an improper and tortuous manner with an intention of obtaining an unlawful result.

Legislation cited (15)

Cases cited (4)

  • Charles Harry Twagira v Attorney General and Another (Supreme Court Civil Appeal No. 4 of 2007)
  • Attorney General and Another v James Kamoga and Another (Supreme Court Civil Appeal No. 8 of 2004)
  • Jennifer Muthoni Njoroge & 10 ors vs AG [2012] eKLR
  • Businge Gerald v Attorney General (Civil Suit No. 38 of 2015)

Full judgment

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

RA 65008 W011 Atunga Bantu and 7 Others v Director Public Prosecutions and Story (Miscellaneous Cause No. 247 of 2017) [2021] UGHC 49 (24 June 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.