Wakilii

Turyamusiima v Attorney General & Another (Miscellaneous Application 64 of 2020)

High Court · [2020] UGHCCD 230 · 2020 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Human rights enforcement application arising from Miscellaneous Cause No. 77 of 2020 seeking declarations of constitutional violations and orders for access to legal representation during COVID-19 lockdown
Decision
Second respondent struck off on preliminary objection. Application partly overtaken by events following Presidential directive allowing limited lawyer access. Court directed respondent to provide detailed modalities for advocate access to preserve constitutional rights.

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Holding

Held that a Minister acting in official capacity under statutory authority cannot be sued personally absent evidence of malice or acting outside scope of mandate. The second respondent was struck off. The application was partly overtaken by Presidential directive No. 7 of 4 May 2020 allowing 30 lawyers to provide urgent legal services, rendering prayers 1–3 moot. The court directed the respondent to provide detailed modalities for advocates to access clients in deserving cases to guarantee non-derogable rights to fair hearing and habeas corpus under Article 44 of the Constitution.

Outcome

Second respondent struck off on preliminary objection. Application partly overtaken by events following Presidential directive allowing limited lawyer access. Court directed respondent to provide detailed modalities for advocate access to preserve constitutional rights.

Facts

During the COVID-19 pandemic lockdown in March–April 2020, the President issued directives restricting movement and the Minister of Health enacted SI 55 of 2020 prohibiting private vehicle use except for listed essential services. Advocates of the High Court were not listed. The applicant, an advocate, sought declarations that this exclusion violated non-derogable constitutional rights to fair hearing, habeas corpus, and freedom from torture for arrested persons who could not access legal representation. The applicant cited specific clients held incommunicado and others arrested without counsel. On 4 May 2020, while the matter was pending, the President issued a new guideline allowing 30 lawyers through the Uganda Law Society to provide urgent legal services including handling urgent criminal matters.

Issues

  1. Whether the Minister of Health can be sued in her personal capacity for enacting statutory rules as opposed to only the Attorney General being named as respondent.
  2. Whether the failure to include advocates of the High Court among essential services exempted from COVID-19 lockdown restrictions infringes the right to fair hearing under Article 44(c) of the Constitution.
  3. Whether the failure to include advocates among exempted essential services infringes the right to an order of habeas corpus under Article 44(d) of the Constitution.
  4. Whether the failure to include advocates among exempted essential services infringes the right to freedom from torture, cruel, inhuman and degrading treatment under Article 44(a) of the Constitution.
  5. Whether the court can grant relief when Presidential directives issued during the proceedings have substantially addressed the applicant's concerns.

Orders

  • Preliminary objection upheld.
  • The 2nd respondent, Dr. Jane Ruth Aceng, struck off the application.
  • Prayers 1–3 of the Notice of Motion rendered moot and no farther consideration given.
  • The respondent is directed to provide detailed modalities stating what mechanisms, in deserving cases, advocates may utilise for access to clients, to guarantee that the right to a fair hearing and the right to an order of habeas corpus (as stated under Article 44 of the Constitution) is preserved.

Rules and key headnotes

Ministerial Liability — Personal Capacity versus Official Capacity — Article 250(2)
A Minister who enacts statutory rules in official capacity pursuant to delegated statutory authority cannot be sued personally unless there is evidence that the Minister acted maliciously or outside the scope of the delegated mandate. In the absence of such evidence, proceedings must be brought against the Attorney General under Article 250(2) of the Constitution and Section 10 of the Government Proceedings Act.
Public Officer Liability — Human Rights (Enforcement) Act Section 10(1)
Under Section 10(1) of the Human Rights (Enforcement) Act 2019, a public officer may be held personally liable for violation of a person's rights or freedoms only where there is proof of specific violation or personal participation in the violation by that particular officer. The provision requires evidence of individual culpability, not mere policy-making in official capacity.
Non-Derogable Rights — Article 44 — Interpretation
Constitutional provisions protecting non-derogable rights, particularly Article 44 safeguarding the right to fair hearing and the right to an order of habeas corpus, must be given a generous and purposive construction. The framers intended these freedoms to be inalienable whatever the circumstances.
Mootness — Relief Overtaken by Executive Action
Courts do not decide cases where no live dispute between parties exists or where issues in dispute have been removed or no longer exist. Court orders must have practical effects and cannot be issued for academic purposes only. Where executive action during the pendency of proceedings substantially addresses the applicant's concerns, the application may be rendered moot.
Emergency Powers — Balance between Public Health Measures and Fundamental Rights
Even during public health emergencies requiring restrictions on movement and contact, the state must provide mechanisms to preserve non-derogable constitutional rights. Where emergency regulations may impede access to legal representation, detailed modalities must be established to ensure the right to fair hearing and the right to habeas corpus are not infringed.
Judicial Notice — Presidential Directives and Matters of Common Knowledge
Courts may take judicial notice of Presidential directives on COVID-19 preventive measures as matters of local notoriety and common knowledge that require no proof. Law does not operate in a vacuum and courts must be alive to happenings in society, particularly widely broadcast and circulated executive pronouncements.

Legislation cited (29)

Cases cited (6)

  • Mukisa Biscuits v West End Distributors [1969] EA 696
  • Charles Harry Twagira v Attorney General and Two Others (Supreme Court Criminal Appeal No. 4 of 2007)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Human Rights Network for Journalists and Another v Uganda Communications Commission & Others (High Court Miscellaneous Cause No. 219 of 2013)
  • BAT vs TEAN
  • Law Society of Kenya v Hillary Mutyambai and Other Constitutional Petition No 120 of 2020

Full judgment

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

Turyamusiima v Attorney General & Another (Miscellaneous Application 64 of 2020) [2020] UGHCCD 230 (5 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.