Court name
HC: Civil Division (Uganda)
Judgment date
5 March 2020

Rutabana v Director General, Chieftaincy of Military Intelligence & 5 Ors (Miscellaneous Cause-2020/18) [2020] UGHCCD 132 (05 March 2020);

Cite this case
[2020] UGHCCD 132
Coram
Nambayo, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[CIVIL DIVISION]

MISC CAUSE NO. 18 OF 2020

RUTABANA BENJAMINE…………………………………………………APPLICANT

VERSUS

  • THE DIRECTOR GENERAL, CHIEFTANCY OF MILITARY INTELLIGENCE (CMI)
  • THE DIRECTOR GENERAL, INTERNAL SECURITY ORGANISATION (ISO)
  • THE INSPECTOR GENERAL OF POLICE (IGP)
  • THE DIRECTOR OF CRIMINAL INVESTIGATION
  • COMMANDANT SPECIAL INVESTIGATIONS BUREAU (SIB)
  • ATTORNEY GENERAL ………………………………………………….. RESPONDENTS

           BEFORE:  HON. JUSTICE ESTA NAMBAYO                                       

                               RULING

Rutabana Benjamine (herein after referred to as the applicant) brought this application against the Director General, Chieftaincy of Military Intelligence (CMI) (herein after referred to as the 1st respondent), the Director General, Internal Security Organization (ISO) (2nd respondent), the Inspector General Of Police (IGP), (3rd respondent), the Director Of Criminal Investigation (4th respondent), the Commandant of Special Investigations Bureau (SIB), (5th respondent) and the Attorney General (6th respondent) under Article 23 (4) & 9 of the constitution of the Republic of Uganda, S. 34 of the Judicature Act and Rules 3 & 4 of the Judicature (Habeas Corpus) Rules, seeking for an order of Habeas Corpus to issue directing all the respondents or such other detention facility manned by the respondents jointly and/or severally to produce the applicant before this court.

The grounds of this application are well laid out in the affidavit of Kenneth Munungu an Advocate but briefly they are that the applicant was arrested from Kampala in the morning on the 8th September, 2019 by plain clothed men who identified themselves as security operatives from CMI and ISO.  Upon arrest, the applicant was taken to Mbuya Chieftaincy of Military Intelligent (CMI) headquarters and then transferred to the Internal Security Organization and back to CMI and thereafter his whereabouts became unknown. The applicant’s family members wrote letters to the French Embassy and to the Ministry of foreign Affairs in Uganda on the 28th October 2019, but to no avail. The applicant has spent 5 months in illegal detention, which unconscionably exceeds the constitutional limit of 48 hours and contravenes Article 23(4) of the Constitution of the Republic of Uganda. The applicant has not been tried in any court of law and that it is in the interest of justice and fairness that the applicant be unconditionally released from detention since the government has failed to charge him before the courts of law.

When the matter came up for hearing on the 12 /2/2020, Counsel David Gureme Mushabe appeared for the applicant and submitted that the applicant was arrested on the 8/9/2019 by security operatives in Kampala and taken to CMI Headquarters at Mbuya. He was later transferred to ISO headquarters and returned to Mbuya. Thereafter, his relatives have not had access to him. Counsel explained that on the 28/10/2019, the French Embassy wrote to the Ministry of Foreign Affairs concerning the applicant who is also their citizen. He relied on annexure “A” attached to the affidavit in support of the application to show that the applicant is a French man and annexure “B” which is a letter to the Ministry of Foreign Affairs. Counsel said that the letter was not acted upon. That the applicant spent over 5 months in the illegal detention of the respondents which contraventions article 23(4) of the constitution of Uganda. Counsel went on to explain that it is within the best interests of justice and fairness that the applicant be produced before this court. He pointed out that annexure “C” to the affidavit of Kenneth Munungu, is a letter dated 28/10/2019 by the family members of the applicant to the French Embassy and to the Ministry of Foreign Affairs. Annexure D is a letter dated 2nd January 2020 from Mushabe, Munungu & Co. Advocates to the Chief of Defense Forces, no reply was received. Annexure E is a letter to the Director General of Internal Security Organization dated 9/1/2020. All these correspondences have fallen on deaf ears. The applicant has no prior criminal record in this jurisdiction or elsewhere and that it is in the interest of justice that a writ of habeas corpus issues against the respondents. Counsel explained that the applicant has been detained for 5 months which is more than the 48 hours’ detention period. He prayed that this court be pleased to issue a writ of habeas corpus.

I have looked at the Court record, the evidence presented and listened to the submissions by Counsel for the applicant. I have also looked at the law applicable.

Article 23(4) of the constitution of Uganda provides that:

  A person arrested or detained— 

(a)       for the purpose of bringing him or her before a court in execution of an order of a court; or

(b)       upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda,

shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of his or her arrest.

 

 

(5)     Where a person is restricted or detained—

(a)       the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention;

(b)       the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person; and

(c)       that person shall be allowed access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.

According to paragraph 5 of the affidavit in support of the application, the applicant has been in detention for 5 months without ever being charged with any offence or appearing before court of law. This contravenes Art. 23(4) of the Constitution.

The applicant’s kin have not been allowed access to the applicant and no reason is given. This contravenes Art. 23 (5) of the Constitution. Holding the applicant Mbuya which is an un-gazetted place for detention equally contraventions the provisions of the constitution, see Art.23 (2).

Therefore, I find this to be a proper case to allow this application, which I do hereby allow with orders that the respondents be and are hereby directed to produce the applicant before this court on the 19/2/2020 at 9am together with a return.

I so order.

Esta Nambayo

JUDGE

12/2/2020

19/2/2020.

Mr. David Gureme Mushabe -   Counsel for the Applicant.  

Mr. Brian Musota, State Attorney from the Attorney General’s Chambers for the respondent,

Brian Ssebugwawo – Court Clerk.

Gureme:     Following the order of this court, the respondents were served. Counsel for the respondent is here in court.

Musota:  We received the order of this court, it was only served to us yesterday. I have not yet gathered the necessary information. I was only able to get in contact with the police. They don’t have the applicant in their custody and he is not known to them. I pray for more time from this court so as to follow up with other institutions.

Gureme:  No objection

Court: Case adjourned to the 27/2/2020 at 12pm for hearing of this matter. Let Mr. Brian Musota State Attorney from the Attorney General’s Chambers be served with the extended orders.

Esta Nambayo

JUDGE

19/2/2020

 

27/2/2020.

David Gureme Mushabe -  for the applicant

Brian Musota, State Attorney from the Attorney General’s chambers Kampala for the respondents.

Climent Moutel -  first counselor from the French Embassy together with Thierry Eder consul from the Franch Embassy.

Thome Sankara applicant’s cousin and;

Shabukuru Martin friend to the applicant

Brian Ssebugwawo – Court clerk

Mr. Gureme:  -  Following the extension of the order of habeas corpus, we are here to be updated.

Musota: We received the extended order. I immediately wrote a letter to the 1st & 5th respondents, explaining the nature of the application and what they were required to do. The Ministry of defence and Internal Affairs provided a signed return signed by Brig. General A.A Kagoro, legal officer with the Ministry of Defence dated 26/2/2020. We have filed it on court record.  On behalf of the 1st and 2nd respondents he states that the applicant is not known to them and he is not in their custody. I also received a return from the Commander - Special Investigations Division (5th respondent) It states that they don’t have the applicant at Kireka. I did not receive replies from the 3rd, 4th and 5th respondents. On my way to court today an officer from ISO called me saying that their investigations are almost complete and the applicant is not in their custody. I hope to get a reply. In the circumstances, I pray for more time to get the pending written responses. I pray for another 7 days. I will do my best to follow up. I so pray.

Gureme:  I noticed that Brig. Kagoro wrote on behalf of the UPDF, the order was addressed to specific offices and specific officers not UPDF who Kagoro (Brig) is not authorized to answer for. It is my view and I seek guidance of this court that the Director General of CMI is obliged to make a return. We have no return from the Chief of CMI. The same applies to ISO.  The IGP has not made a return and the order is specific.  The office of the Director of CID has made no return. I pray that these particular offices make returns. I have no objection to the extension of time.

COURT

The matter is adjourned to the 5/3/2020 at 10:30 am for hearing. Let the offices named in the order who have not made returns do so by then specifically the 1st respondent- CMI, the 2nd respondent- ISO, the 3rd respondent- IGP, the 4th respondent- Director-CID.

I so order

Esta Nambayo

JUDGE

27/2/2020

5/3/2020.

Brian Musota  - state Attorney from AG’s Chambers.  

Gureme David Mushabe -  for the applicant,

Beatrice Athieno – Court Clerk

Musota: Last time we presented returns from the Ministry of Defence and the Commandant (SIB) of the police. This court advised that we extend the order to the other respondents. The AG has filed the returns.

Return 1- Director General of Internal Security Organization signed by DG Kaka himself. It was established that the applicant is not under their detention.

Return 2- UPDF signed by LT General Joseph Musayufu. It was established that the applicant is not with them. They carried out investigations with all units of UPDF. He has never been arrested by the UPDF.

Return 3- UPF-IGP-I was advised that arrests are under CID- After investigations, we were informed that the applicant is not under their custody. It is signed by Paul Kato Ag. D/Director CID-Police;

The returns represent both the 3rd and 4th respondents. That is the information that the Attorney General received. I pray that given this information/reports, we close the court file and each party bares its own costs.

Gureme:  I find that the returns comply to the order issued by this court. I associate myself with the submission that the file be closed if it pleases court.

COURT RULING

I have looked at the application and the reports that have been filed in court by the State Attorney. I have also listened to the submission of both counsel that the file be closed.  I’m left with no option but to close the file. Accordingly, this court file is hereby closed the applicant having been not found in the custody of any of the respondents. Each party will bare its own costs,

I so order

Esta Nambayo

JUDGE

5/3/2020