Wakilii

Rights Trumpet & 2 Others v AIGP Asan Kasingye & 5 Others AND Mucunguzi Abel & 9 Others v Attorney General & 2 Others (Consolidated Miscellaneous Cause No. 17 & 3 of 2017)

High Court · [2020] UGHC 42 · 2020 Applications Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Two consolidated miscellaneous causes seeking enforcement of fundamental rights under Article 50 of the Constitution following alleged unlawful arrest, detention, and torture by police officers.
Decision
Applications allowed. Declaratory orders granted finding violations of constitutional rights. General and punitive damages awarded to applicants against the Attorney General and individual police officers. Costs awarded to applicants.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that police officers violated the applicants' constitutional rights to liberty, freedom from torture, freedom of assembly, and family unity by unlawfully arresting and detaining peaceful demonstrators beyond 48 hours without charge, torturing mothers suspected of connection to a murder, and separating their children from them for 51 days without legal authority. The Attorney General was held vicariously liable and individual police officers were held personally liable. General and punitive damages were awarded to each applicant.

Outcome

Applications allowed. Declaratory orders granted finding violations of constitutional rights. General and punitive damages awarded to applicants against the Attorney General and individual police officers. Costs awarded to applicants.

Facts

Ten applicants were arrested on 18 September 2017 while peacefully demonstrating in Kampala against the proposed lifting of the presidential age limit. They were detained at Nagalama Police Station beyond 48 hours without being arraigned before court, with some held for 120 hours and others for 192 hours before being released without charge. Separately, on 21 March 2017, Ampiire Aisha and her co-wife Bint Salim were arrested on suspicion their husband was involved in the murder of Felix Andrew Kawesi. They were detained for 6 days, during which they were blindfolded, beaten, threatened with death and rape, and made to sleep on the floor at Kireka Special Investigation Unit. Upon their release, they discovered their 12 children, aged 1 to 20 years, had been removed from their home by police and held at an undisclosed location for 51 days without access by parents, relatives, lawyers or doctors. The children were eventually released after media exposure of their plight.

Issues

  1. Whether there were any human rights violations on the Applicants.
  2. Whether any of the Respondents is liable for the violations.
  3. What remedies are available?

Orders

  • All declarations prayed for under Miscellaneous Cause 17/2017 save for the right of protection from deprivation of property under Article 26 are allowed.
  • All declarations prayed for under Miscellaneous Cause 003/2017 are allowed.
  • Ampiire Aisha and Nansubuga Saidat are awarded general damages of UGX 30,000,000 each against the Attorney General.
  • Ampiire Aisha is awarded punitive damages of UGX 5,000,000 against Sarah Nankwanga D/C for torture by blindfolding.
  • Ampiire Aisha and Nansubuga Saidat are awarded punitive damages of UGX 1,000,000 each against ASP Brian Nyehangane for concealing the whereabouts of their children.
  • Each of the 10 applicants in Miscellaneous Cause 003/2017 is awarded general damages of UGX 30,000,000 against the Attorney General.
  • Each of the 10 applicants in Miscellaneous Cause 003/2017 is awarded punitive damages of UGX 1,000,000 against ASP Brian Nyehangane for unlawful detention beyond 48 hours.
  • Each of the 10 applicants in Miscellaneous Cause 003/2017 is awarded punitive damages of UGX 1,000,000 against Ndugutse Alfred for ordering unlawful arrest and detention.
  • Costs of the applications are awarded to the Applicants against the Attorney General.
  • Certificate of two counsel issued.

Rules and key headnotes

Personal Liberty — Right to be Arraigned Before Court Within 48 Hours — Unlawful Detention
A person arrested or detained upon reasonable suspicion of having committed or being about to commit a criminal offence must be brought to court as soon as possible, in any case not later than 48 hours from the time of arrest. Detention beyond 48 hours without arraignment converts an otherwise lawful arrest into an unlawful detention and violates the constitutional right to personal liberty under Article 23(4)(b) of the Constitution.
Freedom of Assembly — Police Powers Under Public Order Management Act — Regulation Not Prohibition
The power of police under the Public Order Management Act to regulate public meetings, assemblies and demonstrations is limited to ensuring that conduct conforms to constitutional requirements that demonstrations be peaceful and unarmed. The police do not have unfettered powers to prohibit or prevent peaceful demonstrations, but rather must provide security to enable demonstrators to exercise their constitutional right to freedom of assembly under Article 29(1) of the Constitution.
Freedom from Torture — Blindfolding During Interrogation — Mental and Psychological Torture
Blindfolding a suspect during interrogation constitutes mental and psychological torture prohibited by Article 24 and Article 44(a) of the Constitution and by the Prevention and Prohibition of Torture Act 2012. Blindfolding is expressly listed as the first form of mental and psychological torture under the Second Schedule to the Act. Any evidence obtained by torture is inadmissible under section 14 of the Act.
Children's Rights — Separation from Family — Police Removal of Children Without Legal Authority
Children may not be separated from their families or the persons entitled to bring them up against the will of their families except in accordance with law under Article 31(5) of the Constitution. Police removal of children from their home and detention away from their parents for 51 days without a probation report, care order, or involvement of social welfare officers violates the constitutional rights of both children and parents to family unity and the right of parents to care for their children.
Personal Liability of State Officers — Duty to Respect Human Rights — Defence of Following Orders
A police officer or other state agent who violates constitutional rights and freedoms in the course of performing their functions is personally liable for such violations under Article 221 of the Constitution, which mandates that security organizations observe and respect human rights in the performance of their functions. The defence that an officer was acting on orders from above or waiting for orders from above is no defence where the officer's conduct violates constitutional rights, as each officer has personal responsibility for their actions and a duty not to follow illegal and unconstitutional directives.
Vicarious Liability of the State — Attorney General — Liability for Acts of State Agents
The Attorney General is vicariously liable for constitutional breaches and violations of human rights committed by police officers and other state agents acting in the course of their duties. This vicarious liability arises under the common law doctrine of agency where the state's agents commit wrongful acts while performing their functions on behalf of the state.
Human Rights Violations — General and Punitive Damages — Deterrent Function
Where police officers or other state agents deliberately violate the constitutional rights and freedoms of individuals in the course of performing their duties, both general damages against the state and punitive damages against individual officers are appropriate remedies under Article 50(1) and Article 23(7) of the Constitution. Adequate compensation should serve as a deterrent to security agencies that violate rights with impunity, and the judiciary must reclaim its mantle by awarding damages that hold the executive accountable for the maintenance of the rule of law.

Legislation cited (35)

Cases cited (6)

  • Lucas Marisa v. Uganda Breweries Ltd [1988-1990] HCB at page 132
  • R v. Oakes 26 DLR (4th) 200
  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Moses Mwandha v Attorney General (Constitutional Petition No. 5 of 2007)
  • Republic v. Amos Karuga Kavatu, Kenya High Court Cr. Case No. 12/2006
  • Dr Kizza Besigye and Others v Attorney General (Constitutional Petition No. 7 of 2009)

Full judgment

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

Rights Trumpet & 2 Others v AIGP Asan Kasingye & 5 Others AND Mucunguzi Abel & 9 Others v Attorney General & 2 Others (Consolidated Miscellaneous Cause No. 17 & 3 of 2017) [2020] UGHC 42 (15 May 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.