Wakilii

Sserunkuma and Another v Attorney General (Misc Cause 102 of 2021)

High Court · [2024] UGHCCD 119 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for human rights enforcement under Article 50 of the Constitution arising from alleged unlawful arrest and detention by police
Decision
Application largely succeeded. Declarations of violation of right to personal liberty issued. Claims for declarations of torture, self-incrimination, and nullity of criminal trial dismissed. General damages awarded.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that police detention of the applicants beyond 48 hours violated their right to personal liberty under Article 23(4)(b) of the Constitution. Held that failure to inform the second applicant of the reason for his arrest violated Article 23(3). Held that failure to inform both applicants of their right to access a lawyer of their choice violated Article 23(3). The court declined to declare the pending criminal trial a nullity, finding that such declaration is within the domain of the criminal trial court, not the human rights enforcement court. General damages of UGX 10,000,000 awarded to each applicant with 10% interest per annum.

Outcome

Application largely succeeded. Declarations of violation of right to personal liberty issued. Claims for declarations of torture, self-incrimination, and nullity of criminal trial dismissed. General damages awarded.

Facts

In September 2019, the 1st applicant was arrested and detained at Jinja Road Police Station on allegations of trespassing on land and released on police bond. On 24 February 2020, when he reported as per the bond terms, he was re-arrested and detained for three days before being arraigned in court on 27 February 2020. On 1 March 2020, the 2nd applicant (son of the 1st applicant) was arrested at his home by persons in plain clothes who did not identify themselves or inform him of the reason for arrest. He was detained for four days and arraigned on 4 March 2020. Both applicants were charged with forgery and uttering false documents in criminal proceedings CO-119/2020 at Chief Magistrate's Court Nakawa. A charge sheet dated 27 January 2020 had been sanctioned by the DPP on 18 February 2020 before the arrests. The applicants alleged they were not informed of their right to a lawyer and were threatened into producing original land documents.

Issues

  1. Whether the named rights and freedoms of the Applicants were infringed by the actions of the Respondent's agents.
  2. Whether the Applicants are entitled to the remedies claimed.

Orders

  • Declaration issued that the 2nd Applicant's right to personal liberty by being informed of the reasons of his arrest under Article 23(3) of the Constitution was infringed upon by the servants or agents of the Respondent.
  • Declaration issued that the 1st and 2nd Applicants' rights to personal liberty by being informed of their right to access a lawyer of their choice under Article 23(3) of the Constitution was infringed upon by the servants or agents of the Respondent.
  • Declaration issued that the 1st and 2nd Applicants' right to personal liberty by not being kept in detention beyond the period of 48 hours under Article 23(4)(b) of the Constitution was infringed upon by the servants or agents of the Respondent.
  • Payment by the Respondent of the sum of UGX 10,000,000 to each Applicant as general damages.
  • Interest on the general damages at the rate of 10% per annum from the date of this ruling until payment in full.
  • The taxed costs of this application awarded to the Applicants.

Rules and key headnotes

Constitutional Law — Right to Personal Liberty — Detention Beyond 48 Hours — Mandatory Time Limit
The 48-hour time limit prescribed under Article 23(4)(b) of the Constitution for producing an arrested person before court is a maximum mandatory limit and not open to justification for any delay beyond that period. The options available to police after 48 hours are to produce the person in court or release them on bond. It is incorrect to routinely arrest suspects before conduct of investigations, and where immediate arrest is warranted, there is no rule requiring that investigations must be complete before producing the person in court.
Constitutional Law — Right to Personal Liberty — Assessment of Breach — Timing of Justification
Assessment as to whether a suspect was produced before court as soon as was reasonably practicable is available to police before the lapse of the 48 hours prescribed under Article 23(4)(b) of the Constitution, not after. After the 48 hours, any continued detention is strictly illegal. Any assessment of the period of excess detention and injury occasioned to the suspect is for purposes of consideration and assessment of damages, never for ascertaining whether the right has been violated.
Constitutional Law — Right to Personal Liberty — Duty to Inform Suspect of Reason for Arrest
The right to be informed of the reason for one's arrest under Article 23(3) of the Constitution is a distinct right with the rationale that since a person's liberty is being curtailed, they are entitled to know why and should not be left to guesswork. The purpose is to enable mental preparation and trigger other rights such as informing next of kin, a lawyer, or accessing medical treatment. The right is particularly imperative where arresting officers are in plain clothes and the suspect could reasonably believe they are being kidnapped.
Constitutional Law — Right to Personal Liberty — Right to be Informed of Right to Counsel — Nature of Duty
The right to a lawyer of one's choice under Article 23(3) and (5)(b) of the Constitution is twofold: it constitutes a right to be informed that a suspect is entitled to a lawyer of their choice, and when a lawyer appears, the suspect has a right to be accessed by the lawyer. The police duty extends to informing suspects of their right to a lawyer of their choice, not merely allowing access if a lawyer appears.
Criminal Law & Procedure — Arrest Procedure — Arrests by Officers in Plain Clothes — Condemnation of Practice
The practice of effecting arrests by persons not in police uniform and using civilian vehicles is highly condemnable and ought to be stopped. It has the grave and long-term effect of obliterating the difference between lawful arrests and kidnap. Where officers effect arrest in plain clothes, it is particularly imperative that they introduce themselves properly to the suspect, inform him of the reason for arrest, and ask him to follow them.
Constitutional Law — Human Rights Enforcement — Nullification of Criminal Trial — Jurisdiction of Enforcement Court
Under Section 11(2) of the Human Rights Enforcement Act 2019, where a competent court in a human rights enforcement matter finds an infringement of a non-derogable right, the role of that court is to make a finding and issue a declaration to that effect. The duty to declare a criminal trial a nullity and acquit the accused person is within the domain of the criminal trial court, not the human rights enforcement court. The successful applicant may use the declaration from the enforcement court to move the trial court for nullification.
Damages & Quantum — General Damages — Constitutional Violations — Proof of Damage
Although infringement of a person's liberty per se imputes damage, a plaintiff needs to prove some damage suffered beyond the mere fact of unlawful arrest or detention; otherwise, the mere breach may only entitle a plaintiff to nominal damages. This may not be the same in the case of acts of torture, cruel, inhuman, or degrading treatment whose severity may exist even without leaving physical footprints.

Legislation cited (37)

Cases cited (10)

  • Zachary John Olum v Bongomin John Odora & Others (HCCA No. 120 of 2015)
  • Bukeni Ali & Others v Attorney General & Others (HCMC No. 10 of 2021)
  • Republic v Amos Karuga [2008] eKLR
  • Soon Yeon Kong Kim & Another v Attorney General (Constitutional Reference No. 6 of 2007)
  • Mapp v Ohio 67 U.S. 643; 81 S. Ct. 1684; 6 L. Ed. 2d 1081
  • Hadley v Baxendale (1894) 9 Exch 341
  • Kibimba Rice Ltd v Umar Salim (SC Civil Appeal No. 17 of 1992)
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 305
  • Rookes v Barnard [1946] ALLER 367
  • Fredrick J.K. Zaabwe v Orient Bank & Others [2007] UGSC 21

Full judgment

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Sserunkuma and Another v Attorney General (Misc Cause 102 of 2021) [2024] UGHCCD 119 (8 July 2024)
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.