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Tendo & Another v Attorney General (Constitutional Petition 8 of 2021)

Constitutional Court · [2024] UGCC 24 · 2024 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of statutory provisions on preventive arrest and the State's omission to enact guidelines on the duration of preventive detention
Decision
Petition dismissed; impugned provisions held consistent with the Constitution and the cited international instruments

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Holding

The petitioners challenged sections 24, 26 and 27 of the Criminal Procedure Code Act as granting police wide, ambiguous powers of indefinite preventive arrest and detention without charge or trial, and complained that the State omitted to enact guidelines limiting detention. The Constitutional Court dismissed the petition. It held that the powers are confined by the definition of 'cognisable offence' (s.1(b)) and the criteria in section 10, and fall within the Article 23(1)(c) liberty exception. Read harmoniously with sections 14 and 17, the Code requires arrested persons to be brought before a magistrate within 24 to 48 hours, so detention is neither indefinite nor unconstitutional, and no further regulation is required.

Outcome

Petition dismissed; impugned provisions held consistent with the Constitution and the cited international instruments

Facts

The petitioners are advocates and human rights lawyers associated with the Network of Public Interest Lawyers (NETPIL), which in December 2020 and March 2021 commissioned comparative research entitled 'Perspectives on Preventive Arrests' in which both participated. Through the study they observed that in other jurisdictions preventive arrest is governed by procedures requiring detained persons to be produced before court within fixed periods, whereas Ugandan law prescribed no maximum duration. They petitioned the Constitutional Court contending that section 24(2) of the Police Act and sections 24, 26 and 27 of the Criminal Procedure Code Act permit police to arrest and detain persons without charge for an indefinite period, and that the State's omission to enact guidelines on the duration of preventive detention was unconstitutional. At the hearing the petitioners abandoned the complaint about section 24(2) of the Police Act as res judicata, following Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 53 of 2011), and the petition proceeded only on sections 24, 26 and 27 of the Criminal Procedure Code Act.

Issues

  1. Whether the Constitutional Court has jurisdiction to determine the petition.
  2. Whether sections 24, 26 and 27 of the Criminal Procedure Code Act contravene or are inconsistent with Articles 2(1) and (2), 20(2), 23(1) and (4), 28(1) and 44(c) of the Constitution.
  3. Whether sections 24, 26 and 27 of the Criminal Procedure Code Act contravene Article 8A and Objective XXVIII of the National Objectives and Directive Principles of State Policy, Article 9(1) of the ICCPR and Article 6 of the African Charter on Human and Peoples' Rights.
  4. Whether the petitioners are entitled to the remedies sought.

Orders

  • Sections 24, 26 and 27 of the Criminal Procedure Code Act are not in contravention of and/or inconsistent with Articles 23(1) and (4), 28(1) and 44(c) of the Constitution.
  • Sections 24, 26 and 27 of the Criminal Procedure Code Act are not inconsistent with and/or in contravention of Article 8A and Objective XXVIII of the National Objectives and Directive Principles of State Policy, Article 9(1) of the ICCPR and Article 6 of the African Charter on Human and Peoples' Rights.
  • The petitioners are not entitled to any of the reliefs sought.
  • There shall be no order as to costs as the petition was brought in the public interest.

Rules and key headnotes

Constitutional Law — Interpretation — Harmonious Construction of the Constitution and Statutes
The Constitution must be read as an integral whole, with no provision destroying another but each sustaining the other, and the same rule of harmonious construction applies to the interpretation of a statute alleged to be inconsistent with it.
Constitutional Law — Jurisdiction — Article 137 — Power to Interpret Statutes for Inconsistency
Under Article 137(3) of the Constitution, the Constitutional Court is empowered to interpret an Act of Parliament or other law in order to determine whether it is inconsistent with the Constitution, and to assess an act or omission for contravention, even where the constitutional provision itself is clear.
Criminal Law & Procedure — Preventive Arrest — Cognisable Offence — Scope of Police Discretion
Police powers of preventive arrest under sections 24, 26 and 27 of the Criminal Procedure Code Act are confined by the statutory definition of a 'cognisable offence' in section 1(b) and the criteria for arrest without warrant in section 10, and are therefore neither wide nor ambiguous.
Human Rights — Personal Liberty — Article 23 — Preventive Detention and the Duty to Produce Before Court
Preventive arrest falls within the exception in Article 23(1)(c) of the Constitution, and because sections 14 and 17 of the Criminal Procedure Code require an arrested person to be brought before a magistrate within 24 to 48 hours, such detention is neither indefinite nor a violation of the rights to personal liberty or a fair hearing.
Human Rights — International Instruments — Domestication — ICCPR and African Charter
Where the right to liberty under Article 9(1) of the ICCPR and Article 6 of the African Charter on Human and Peoples' Rights is domesticated and given detailed effect by Article 23 of the Constitution, statutory provisions that are consistent with Article 23 are not inconsistent with those international instruments.

Legislation cited (24)

Cases cited (11)

Full judgment

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Tendo & Another v Attorney General (Constitutional Petition 8 of 2021) [2024] UGCC 24 (22 November 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.