Court name
High Court of Uganda
Case number
Civil Suit 41 of 2012
Judgment date
27 February 2020
Title

Ochwa v Attorney General (Civil Suit 41 of 2012) [2020] UGHC 167 (27 February 2020);

Cite this case
[2020] UGHC 167
Short summary:

Civil Procedure — According to Order 15 rule 5, the court may at any time before passing a decree amend or frame additional issues on such terms as it thinks fit — the absurdity doctrine of Statutory Interpretation — All laws should receive a sensible construction by following legislative intent based on reasonableness, rationality, and common sense. If application of plain statutory language would undermine sufficiently important values of the legal system, courts presume that the legislature would not have intended such a result — article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 should not be applied in such a manner as to put disproportionate difficulties in the way of the police in taking effective measures to counter crime.

Law of Torts — False imprisonment —A claim of this nature requires proof of; (i) a wilful detention; (ii) that the detention was without consent; and (Hi) that the detention was unlawful.

Constitutional Law — The right to liberty — The right to liberty is the right of all persons to freedom of their person, freedom of movement and freedom from arbitrary arrest and detention by others. An unlawful arrest occurs when a person without legal authority or justification, intentionally restrains another person's ability to move freely — there is no power to arrest and detain a person merely to make enquiries about him or her. The Constitution does not permit an arrest for the purposes of interrogation in the hope of getting enough information to ground a charge. Any arrest must be on the basis of a reasonable suspicion — Having "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence — article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 requires a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, if not earlier released, to 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 — There are different reliefs available depending on the extent of violation of this article; In most situations, administrative remedies or remedies under mechanisms of effective judicial oversight will suffice — The first line of remedies accordingly is access to court for the person in detention to regain his or her liberty — It is mainly in situations of serious or gross violations or substantial impairment of fundamental rights, or arbitrary and prolonged violations that general damages are ordinarily awarded — The nature of the right violated is not the only factor that renders human rights violations gross or grave. The character of the violation must also be considered alongside the extent of its effects and the intention of the perpetrator — In the area of remedies for human rights violations, two principles emerge; on the one hand the principle that every invasion of a private right imports an injury and that for every injury the law gives a remedy (ubi jus ibiremedium) and on the other the principle that the law does not concern itself with trifles (de minimis non curat lex) — Whether a particular violation is a de minimis deviation from a prescribed standard must be determined with reference to the purpose of the standard — Violations are considered to be de minimis unless they are of a nature repugnant to the conscience of mankind — The de minimis principle is not intended to suggest that any violation of the Constitutional rights is not serious or is somehow excusable but signifies that a certain level or magnitude of violation is necessary in order not to trivialise the breach — It would trivialise article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 to hold that detention, even for a few hours beyond the 48 hours, is always actionable no matter how unlikely it was that the person was exposed to the risk of ill-treatment, torture and cruel, inhuman or degrading treatment by such detention.

Coram
Mubiru, J

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

Civil Suit No. 041 of 2012

In the matter between

OCHWA OLANYA CHARLES                          PLAINTIFF

And

ATTORNEY GENERAL                                 DEFENDANT

Heard: 15 October, 2019.

Delivered: 27 February, 2020.

Civil Procedure — According to Order 15 rule 5, the court may at any time before passing a decree amend or frame additional issues on such terms as it thinks fit — the absurdity doctrine of Statutory Interpretation — All laws should receive a sensible construction by following legislative intent based on reasonableness, rationality, and common sense. If application of plain statutory language would undermine sufficiently important values of the legal system, courts presume that the legislature would not have intended such a result — article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 should not be applied in such a manner as to put disproportionate difficulties in the way of the police in taking effective measures to counter crime.

Law of Torts — False imprisonment —A claim of this nature requires proof of; (i) a wilful detention; (ii) that the detention was without consent; and (Hi) that the detention was unlawful.

Constitutional Law — The right to liberty — The right to liberty is the right of all persons to freedom of their person, freedom of movement and freedom from arbitrary arrest and detention by others. An unlawful arrest occurs when a person without legal authority or justification, intentionally restrains another person's ability to move freely — there is no power to arrest and detain a person merely to make enquiries about him or her. The Constitution does not permit an arrest for the purposes of interrogation in the hope of getting enough information to ground a charge. Any arrest must be on the basis of a reasonable suspicion — Having "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence — article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 requires a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, if not earlier released, to 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 — There are different reliefs available depending on the extent of violation of this article; In most situations, administrative remedies or remedies under mechanisms of effective judicial oversight will suffice — The first line of remedies accordingly is access to court for the person in detention to regain his or her liberty — It is mainly in situations of serious or gross violations or substantial impairment of fundamental rights, or arbitrary and prolonged violations that general damages are ordinarily awarded — The nature of the right violated is not the only factor that renders human rights violations gross or grave. The character of the violation must also be considered alongside the extent of its effects and the intention of the perpetrator — In the area of remedies for human rights violations, two principles emerge; on the one hand the principle that every invasion of a private right imports an injury and that for every injury the law gives a remedy (ubi jus ibiremedium) and on the other the principle that the law does not concern itself with trifles (de minimis non curat lex) — Whether a particular violation is a de minimis deviation from a prescribed standard must be determined with reference to the purpose of the standard — Violations are considered to be de minimis unless they are of a nature repugnant to the conscience of mankind — The de minimis principle is not intended to suggest that any violation of the Constitutional rights is not serious or is somehow excusable but signifies that a certain level or magnitude of violation is necessary in order not to trivialise the breach — It would trivialise article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 to hold that detention, even for a few hours beyond the 48 hours, is always actionable no matter how unlikely it was that the person was exposed to the risk of ill-treatment, torture and cruel, inhuman or degrading treatment by such detention.

JUDGMENT

STEPHEN MUBIRU, J.

Introduction:

  1. The plaintiff's claim against the defendant is for general damages unlawful arrest and I or wrongful detention, interest and costs. The plaintiffs' claim is that on or about 12th May, 2012 while he was going about his ordinary business at Awach sub-county in Gulu District, he was wrongfully arrested by police officers attached to Gulu Central Police Station. The plaintiff contends that the arrest was without justifiable cause where after he was detained at the police station for the next five days until he was released on 17th May, 2012 without being told the reasons for the arrest no being charged in courts of law.
  2. In the written statement of defence, the defendant denied the plaintiffs' claim. The defendant averred that the plaintiff was lawfully arrested on suspicion of having committed an offence and was detained at a place authorised by law. The defendant therefore prayed that the suit be dismissed with costs.

The plaintiff’s evidence:

  1. The plaintiff, Ochwa Olanya Charles, testified as P.W.Iand stated that he was arrested on 12th May, 2012 and detained at the Gulu Central Police Station cells for five days under squalid conditions that included sleeping on bare cement and answering the calls of nature in a bucket. During his incarceration he was interrogated about poisoning of a water source yet no one had fallen ill of died from drinking water drawn from that well. He has a land dispute with Ocaya Santo over land on which the spring well in issue is located. It is Abalo Beatrice who complained to the police that P.W.1 had adulterated the well. The well is used by the whole community for drawing water for drinking and cooking. The well is about 400 meters from his home and he is the nearest neighbour to the well.

[3] P.W.2.Lakony Jacob testified that he was the Chairman L.C.1 Pageya village at the material time. He drank water drawn from the water source suspected to have been poisoned but never fell ill or suffered any other adverse effects. He came to know about the incident following the release of P.W.1 from custody yet he never saw any policeman come to the village to collect water samples for testing. The well is used by the plaintiff and the community on the village. He smelt the water, there was nothing wrong with the smell. People continued to use the water around that time and there were no adverse effects.

The defendant’s evidence:

  1. D.W.1 No. 0/2376 SP Ozelle John Bosco testified that he arrested the plaintiff on 12th May, 2012 after a case had been reported to the police station by Abalo Beatrice on 24th February, 2012 alleging that the plaintiff had on 21st February, 2012 adulterated water at Laciri in Awach. The plaintiff claimed the land where the well is located belongs to him. Abalo Beatrice claimed to have seen the plaintiff poison the well. Poisoning of wells was rampant at the time and there was one incident in Odek Sub-county. There were complaints of ailments resulting from such acts. People in Awach complained about stomach upsets. The plaintiff went into hiding soon after the report was made to the police. The report was made in February and he was arrested in May. They looked for him at his home in Awach but could not find him. They also received a report from GAL to the effect that the water was contaminated by adulteration. He could not explain when asked where he had been since February, 2012 until May, 2012. They therefore had reason to suspect him.
  2. D.W.2 Musa Wakabi, a Senior Government Analyst at GAL presented a report by Andrew Kizimura Mubiru, showing that a water sample drawn from that spring well was analysed and the questioned water sample was found to contain a chemical called Bendiocarb. It is an insecticide that comes in powder form, whitish in colour. It dissolves in water and is not detectable without analysis once dissolved, depending on the quantity. Once it is detectable then it is toxic. According to World Health Organisation, it is toxic but moderately hazardous with a toxicity rating of (2) two. It may kill depending on the quantity ingested.

The issues for determination:

  1. The parties were directed by court to file a joint memorandum of scheduling which they did, raising three issues. However, according to Order 15 rule 3 of The Civil Procedure Rules, the court may frame issues from all or any of the following materials; - (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of the parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; and (c) the contents of documents produced by either party. According to Order 15 rule 5, the court may at any time before passing a decree amend or frame additional issues on such terms as it thinks fit. It is on that basis that I have re-characterised issues and framed then as follows;
  1. Whether the plaintiff's arrest was lawful.
  2. Whether the plaintiff's detention was lawful.
  3. If so, whether the defendant is liable.
  4. What remedies are available to the parties.

The plaintiff’s final submissions;

  1. In their submissions, counsel for the plaintiff argued that the plaintiff was arrested on unfounded allegations of having poisoned his own well, yet evidence showed that the water drawn there from continued to be used with no adverse effect. It was never ruled out that the traces of bendiocardb found in the water could have found its way there by war of surface run-off following a downpour. Upon arrest, the plaintiff was never informed the reasons why he was arrested. He was detained for five days and was never produced before any court of law. During his detention, he was kept under squalid conditions and when released on bond he continued to trek to the police station regularly. He therefore deserves an award of general damages of shs. 100,000,000/= for the violation of his constitutional rights, and for the hardship and inconvenience he suffered as a result and punitive damages of shs. 10,000,000/= for the oppressive and arbitrary conduct of the police.

The defendant’s final submissions:

  1. In response, the learned State Attorney argued that the plaintiff's arrest was justified by reasonable suspicion of having committed and offence and t was therefore lawful. Members of the community had reported to the police, the water was subjected to scientific analysis and it was established that it was adulterated by a poisonous substance rendering it unfit for human and animal consumption, there was a spate of poisoning of public well at the time. There was no evidence adduced by the plaintiff of agricultural activities undertaken near that well at the material time, yet the month of February is notoriously a dry season in this part of the country. There was no basis for attributing the presence of the poisonous substance found in the water to surface run off following a downpour. He was arrested by police officers, detained at a gazetted place of detention and released on police bond thereafter. The arrest therefore was lawful. The first two days of detention were within the mandated 48 hours and he cannot claim damages in that regard. Additional time was justified by the fact that he threatened to harm someone if released and the law permits detention of a person for his own safety and safety of others. A person lawfully arrested and detained is not entitled to any compensation. Since exemplary and punitive damages are unjustified, these too should not be awarded. Instead the suit should be dismissed with costs.

First issue; whether the plaintiff's arrest was lawful.

  1. The prohibition of arbitrary deprivation of liberty is recognised in all major international and regional instruments for the promotion and protection of human rights. These include articles 9 of The Universal Declaration of Human RightsfUDHR) and The International Covenant on Civil and Political Rights (ICCPR), and article 6 of The African Charter of Human and Peoples’ Rights (See also article 5 of The Convention on the Elimination of All Forms of Racial Discrimination (CERD), article 37 of The Convention on the Rights of the Child (CRC) and article 14 of The Convention on the Rights of Persons with Disabilities (CRPD).). These demonstrate the consensus that the prohibition of arbitrary deprivation of liberty is of a universally binding nature. Detailed prohibitions of arbitrary arrest and detention are also contained in The Constitution of the Republic of Uganda, 1995 and other legislation. Article 23 (1) of The Constitution of the Republic of Uganda, 1995 guarantees the right to liberty and prohibits the deprivation of personal liberty except in specified situations. The right to liberty is the right of all persons to freedom of their person, freedom of movement and freedom from arbitrary arrest and detention by others. An unlawful arrest occurs when a person without legal authority or justification, intentionally restrains another person's ability to move freely. Any person who intentionally restricts another's freedom of movement without their consent may be liable for false arrest.
  2. The right to liberty of person is not absolute though. The law recognises that sometimes deprivation of liberty is justified, for example, in the enforcement of criminal laws. Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is the act of taking a person into custody under the authority of the law or by compulsion of another kind and includes the period from the moment he or she is placed under restraint up to the time he or she is brought before an authority competent to order his or her continued custody or to release him or her. According to section 4 (3) of The Police Act, no person may arrest or detain another except as is provided for under a written law or The Constitution.
  3. Section 23 of The Police Act authorises a police officer, without a court order and without a warrant, to arrest a person if he or she has reasonable cause to suspect that the person has committed or is about to commit an arrestable offence. An arrestable offence is one which on conviction may be punished by a term of imprisonment of one year or more, or a fine of not less than one hundred thousand shillings or both (see section 1 (a) of The Police Act).
  4. Therefore, there is no power to arrest and detain a person merely to make enquiries about him or her. The Constitution does not permit an arrest for the purposes of interrogation in the hope of getting enough information to ground a charge. Any arrest must be on the basis of a reasonable suspicion. The questioning of a suspect on the ground of a reasonable suspicion that he or she has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion. The arresting officer’s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion. It is for the defendant to prove the existence of such reasonable cause (see Dallison v. Caffrey [1965] 1 Q B 348).
  5. Within the context of arrests, a reasonable suspicion means more than bare suspicion. It is something more than an inchoate and un-particularised suspicion or hunch. It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Reasonableness is that point at which the public interest advanced by a particular arrest outweighs the loss of individual liberty. Having "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances. The known facts and circumstances should be sufficient to warrant a person of reasonable prudence to believe that a person has engaged or is about to be engaged in criminal activity. It requires a particularised and objective basis for suspecting the person has engaged in, is engaged in or is about to be engaged in criminal activity.
  6. The concept of reasonable suspicion is not a finely-tuned standard. It is a fluid concept that takes its substantive content from the particular context in which it is being assessed. It exists where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offence has been or is being committed.
  7. In the instant case, an incident was alleged to have happened at Laciri village, Awach sub-county in Gulu district on 21st February, 2012. One of the residents of that village, a one Abalo Beatrice, reported the incident to police at Gulu Central Police Station on 24th February, 2012. It was alleged by that informant that she was an eyewitness to the plaintiff's poisoning of an open, public, water source near his home. The police went to the water source and took samples which were submitted to the Government Analytical Laboratory in Kampala. The analytical report dated 23rd March, 2012 was submitted to the police. The police searched for the plaintiff in vain until he was subsequently arrested on 12th May, 2012 at Awach sub-county.
  8. Therefore at the time of his arrest, the police were acting on the basis more than bare suspicion but rather on the basis of a reasonable suspicion comprising; a statement from a self-proclaimed eyewitness, scientific proof of the suspected adulteration of the water, and the conduct of the plaintiff who could not account for his whereabouts for almost three months following the reporting of the incident. Suspicion is aroused when a suspect acts apprehensively, becomes restless or disappears and goes into hiding after the act (see Mugao and another v. R. [1972] EA 545 and Okuja v. R. [1973] EA 546).
  9. These historical facts, viewed from the standpoint of an objectively reasonable police officer do amount to reasonable suspicion. Police officers are justified in making an arrest where they have reasonably trustworthy information sufficient to warrant a reasonable person of reasonable prudence to believe a particular person to have committed or to be about to commit an offence. That decision requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence.
  10. The plaintiff's arrest was based on a totality of articulable facts supporting a good faith belief that a crime had been committed and the individual being arrested had committed the crime. The known facts and circumstances were sufficient to warrant a person of reasonable prudence in the belief that the plaintiff had committed an offence. The fact that the plaintiff was neither charged nor brought before a court does not necessarily mean that his arrest was not in accordance with the law. This issue therefore is answered in the affirmative. The plaintiff's arrest was lawful.

Second issue;                 whether the plaintiff's detention was lawful.

  1. Article 23 (3) of The Constitution of the Republic of Uganda, 1995 requires that a person arrested, restricted or detained should be informed immediately, in a language that the person understands, of the reasons for the arrest. The person being arrested must in ordinary circumstances be informed of the true ground of his or her arrest at the time he or she is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him or her (see Christie v. Leachinsky [1947] AC 573 at 587 and 600). The reasons must include not only the general legal basis of the arrest, but also enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim. The "reasons" concern the official basis for the arrest, not the subjective motivations of the arresting officer.
  2. Although decisions to arrest suspects may be, and often are, taken on the basis of information, the nature and source of which may not be revealed to a suspect or his or her advocate without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost, compliance does not require technical or precise language to be used provided the person being arrested knows in substance why. Oral notification of reasons for arrest satisfies the requirement. One major purpose of requiring that all arrested persons be informed of the reasons for the arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded.
  3. In the instant case, the plaintiff testified that although he was arrested on Saturday 12th May, 2012 he was never told the reason for his arrest until Wednesday 17th May, 2012 the day he was released on police bond. That is when the CID officer told him that the reason for his arrest was because he had been accused of poisoning water, "in his own well.” The period it took the police to inform him of the reason of his arrest was uncontroverted by the defence. There was a burden on the officer concerned to show to the satisfaction of the court that there were reasonable grounds not to inform the plaintiff the reasons for his arrest at the time he was taken into custody. In the absence of evidence to establish such reasonable grounds the court will most likely find that the delay was unreasonable and a violation of the right.
  4. There is no evidence in the instant case to show why the arresting police officers were unable immediately upon his arrest, to disclose to the plaintiff the reason of his arrest. It has not been shown that the suspicion against him was based on acutely sensitive material such that disclosing the source would have placed in danger the lives and safety of others. Even if there may have been justifiable reasons not to immediately disclose the information or identify the source of the information which led to the arrest of the plaintiff, the police was under an obligation to do so as soon thereafter as it was reasonably practicable. There is no explanation as to why it took the police nearly five days to do so. This prima facie was a violation of the plaintiff's right to be informed immediately, in a language that he understands, of the reasons for the arrest.
  5. Secondly, according to article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, should, 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. Similarly, section 25 (1) of The Police Act requires a police officer on arresting a suspect without a warrant, to produce the suspect so arrested before a magistrate’s court within forty-eight hours unless earlier released on bond. It is for that reason that section 17 (1) of The Criminal Procedure Code requires that any person taken into custody without a warrant for an offence other than murder, treason or rape, where it does not appear practicable to bring the person before an appropriate magistrate’s court within twenty-four hours after he or she was so taken into custody, the officer in charge of the police station to which the person is brought should release the person on his or her executing a bond.
  6. Much as the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, after a certain lapse of time it no longer suffices. A limited period of detention following an arrest is justifiable when in the totality of the circumstances at hand substantial public interests outweigh the minimal loss of personal freedom of movement and privacy imposed in a manner limited in time and nature. Limitation of the pre-charge detention is meant to ensure court oversight and to enable a bail application to be brought (see Raditshego Godfrey Mashilo and another v. Jacobus Michael Prinsloo [2012] ZASCA 146; 2013 (2) SACR 648 (SCA). In order to avoid a characterisation as arbitrary, detention should not continue beyond the period for which the State can provide appropriate justification, and certainly not beyond forty-eight hours from the time of the arrest of a suspect.
  7. Whereas a false arrest occurs when someone arrests another individual without the legal authority to do so, it becomes false imprisonment the moment he or she is taken into custody. A claim of this nature requires proof of; (i) a wilful detention; (ii) that the detention was without consent; and (iii) that the detention was unlawful. The plaintiff's claim is that his detention in police custody beyond forty­eight hours from the time of his arrest was unlawful. Once a person has been arrested by the police, he or she may be detained without charge for a period of forty-eight hours. It is not unlawful for the police to detain a suspect for a reasonable amount of time for questioning based on reasonable suspicion within the first 48 hours of arrest.
  8. In the instant case, the plaintiff was arrested on 12th May, 2012 which was a Saturday and was released on police bond five days later on 17th May, 2012 which was a Thursday. According to section 34 (1) (a) of The Interpretation Act, a period of days from the happening of an event or the doing of any act of thing is deemed to be exclusive of the day in which the event happens or the act or thing is done. According to section 34 (1) (b) and (c) thereof, if the last day of the period is a Sunday or a public holiday, the period shall include the next following day, not being an excluded day, such that where any act is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act is considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day.
  9. As regards to article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 and section 25 (1) of The Police Act, Courts have many times interpreted statutes contrary to their plain meaning, to avoid absurd results. All laws should receive a sensible construction by following legislative intent based on reasonableness, rationality, and common sense. If application of plain statutory language would undermine sufficiently important values of the legal system, courts presume that the legislature would not have intended such a result. In such situations, courts presume that the legislature intended the judiciary to alleviate the inevitable absurdities that would otherwise result from the application of general rules to unforeseen circumstances as a normal function of the interpretive process. It stands to reason that the Constituent Assembly and Parliament respectively would want courts to interpret statutory language to avoid unforeseen problems as they arise when the law is applied to particular situations. The primary justification for the absurdity doctrine is that it can counteract the serious disadvantages of mechanically applying bright-line rules to a wide variety of unforeseen factual situations.
  10. It is therefore this court's considered view that the Constituent Assembly and Parliament respectively could not have intended the 48 hours after arrest to include days when courts are not in session. This is because the logistics of ensuring an appearance before court over a weekend or public holiday are difficult. It is difficult to coordinate police, prosecutorial and court administration and activities over a weekend or public holiday. Consequently, the 48-hour period applies only to ordinary court working hours and days and as such excludes weekends and public holidays from the calculation. If the 48 hours expire outside ordinary court hours, or if it is interrupted by a weekend, or on a day which is not an ordinary court working day, then by necessary implication those days will be excluded and the time will end of the first court day after expiry of the 48 hours. For that reason, in the plaintiff's case the 48 hours began to run on Monday 14th May, 2012 and elapsed on Tuesday 15th May, 2012. The implication is that the plaintiff's detention exceeded the 48 hours by slightly over one day.
  11. In all cases of arrest upon reasonable suspicion of having committed or being about to commit a criminal offence under the laws of Uganda, both article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 and section 25 (1) of The Police Act, provide a universal limitation of 48 hours, yet there are cases in which the police is required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination giving rise to the need for an extended period of detention. It is obvious that strict literalism promotes predictability of the law, which enables people to rely on it in ordering their affairs, and to plan their conduct with some confidence and security. However, it can undermine the rule of law because it can work against the second component, the coherence of the legal system as a whole. Thus, if the literal meaning is enforced, it will establish a precedent in conflict with other parts of the legal system, and will thereby undermine the system's coherence.
  12. The absurd result flowing from the strict application of both article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 and section 25 (1) of The Police Act to all manner of cases, is the imposition of unrealistic time frames on vital investigations thereby resulting into deprivation of the capacity for the police to undertake extensive checks and inquiries in those cases requiring a greater degree than usual of painstaking detective work and forensic examination, where exceptional difficulty is faced in obtaining evidence which is both admissible and usable before a charge is preferred, where there is not enough evidence to charge a person under arrest and more investigation is required. Investigators are generally ill equipped and understaffed, forensics sometimes take several months while State Attorneys required to sanction charges are equally overwhelmed with work, just like the investigators and in some locations, Magistrates are available only on specified days of the week.
  13. One likely outcome is release of suspects on police bond, only to be rearrested when further evidence comes to light, or preferring unrealistic holding charges simply to beat the time frame. As a result, of possibly acknowledgement of such exigencies, there is a general lack of litigation over violations of this nature which is illustrative of a customary license or tolerance which has developed over the years, that is not specifically inconsistent with the purpose and spirit of article 23 (4) (b) of The Constitution.
  14. For balancing human rights protections and public safety concerns, derogations are a rational response. It is a recognition of the facts that there may be instances, where national interests may reasonably come before the rights of individuals. However, article 29 of The Universal Declaration of Human Rights and Article 4 (1) of The International Covenant on Civil and Political Rights envisage the possibility of derogation only in the form of partial, controlled, and temporary limitations. It is trite that derogation from a variety of human rights is permitted in times of public emergency. These exceptional situations often involve the introduction of special powers of arrest and detention. Derogation provides the state with limited but flexible and well-balanced exceptional powers designed to restore a constitutional order in which human rights can again be fully ensured. The power to derogate is a flexible instrument designed to help the state to overcome exceptional crisis situations.
  15. In contrast to other international human rights instruments, The African Charter on Human and Peoples' Rights does not contain a derogation clause. The African Commission has stated that the only legitimate reasons for limitations of the rights and freedoms of the African Charter are found in article 27(2), that is, that the rights of the Charter "shall be exercised with due regard to the rights of others, collective security, morality and common interest" (see Media Rights Agenda and Others v. Nigeria, Decision of the AfCmHPR, 24th Ordinary Session, October 1998). However, article 6 of the Charter (on liberty and security of the person and freedom from arbitrary arrest) provides a claw back clause contained in the phrase "except for reasons and conditions previously laid down by law." References to "the law" in this context may mean that any national laws which are inconsistent and incompatible with the more expansive provisions of the African Charter will prevail over it. The reach and effect of this "claw-back"' clause is even more expansive than derogation clauses found in other human rights instruments.
  16. A number of rights under Chapter Three of The Constitution of the Republic of Uganda, 1995are "non-derogable," meaning that they may not be suspended even in times of the most serious public emergency. Article 23 is not among the rights prescribed by article 44 with regard to which there is a prohibition of derogation. Therefore, article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995, is derogable. Considering that derogations are designed for particularly serious crisis situations that require the introduction of extraordinary measures, article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995, may allow for derogation from the 48 hour rule in exceptional cases, to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other constitutional rights, considering further that certain rights are not subject to limitation under any conditions.
  17. Derogating from human rights obligations should be subject to strict requirements and principles in an attempt to prevent their abuse. In order to avoid situations where authoritarian regimes seeking to eliminate human rights may abuse the power to derogate or use it as a political tool for retention of power, the circumstances under which article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995, may be derogated from ought to be defined as precisely as possible by statute and subjected to a specified procedure. Not only should the circumstances when the right of a person arrested upon reasonable suspicion of having committed or being about to commit a criminal offence under the laws of Uganda to be produced before court within 48 hours of arrest can be derogated from be specified, but also the extent. Such explicit provisions would strike a carefully weighed balance between, on the one hand, the needs of the State and, on the other, the right of individuals to have most of their rights and freedoms effectively protected in exceptional situations, and to have guarantees that the exercise of other rights will not be subjected to undue limitations.
  18. Since the underlying policy behind derogations is to provide for limited noncompliance in order to obviate the need for more far-reaching limitations of human rights, the predominant objective of such derogation should be to safeguard the public interest and observance of the principles of legality and the rule of law. Inherent in article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 is the search for a fair balance between the demands of the general interest of society and the protection of the individual’s fundamental rights. The legal basis justifying the detention beyond the 48 hours must therefore be codified, accessible, understandable, non-retroactive and applied in a consistent and predictable way to everyone equally. Any delay longer than 48hours must remain absolutely exceptional and be justified under the circumstances. Justification for any period of detention beyond the 48 hours, no matter how short, would then be convincingly demonstrated by the authorities and the justification would be required not be abstract or general in character.
  19. As matters now stand, despite the variation in time required to investigate cases, some of which involve the highly sensitive or complex information on which suspicion is based where extra time is needed for examining and correlating evidence, there is no statutory provision derogating from the 48-hour rule mandated by article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995. It is arguable by the defence in this suit that a margin of appreciation should be left to the police, in the interests of national security and public safety, to decide both on the presence of exigencies such as the complexity of the case, and on the nature and scope of derogations necessary to deal with it. Nevertheless, the police cannot enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the police have gone beyond the extent strictly required by the exigencies of the case. The investigative margin of appreciation is thus inevitably accompanied by court supervision.
  20. Derogations must be subject to effective outside supervision in order to prevent abuse, must be used only in situations of absolute necessity in which other means cannot reasonably be expected to safeguard public order, and must be applied subject to strict proportionality. Derogation should only apply to arrests over complex cases; and the limitation should only apply to the extent absolutely required in the specific case. That any extended period of detention must be subject to judicial control is not in doubt.
  21. Hence provisions such as section 25 (3) of The Police Act which empower any person to apply to a magistrate to order the release of such a person unless charged before a magistrate’s court within forty-eight hours unless earlier released on bond, and The Judicature (Habeas Corpus) Rules, S.l. 13- 6 that give precedence to an application for a writ of habeas corpus ad subjiciendum over all other proceedings on the day on which the application is to be heard. These provide a remedy in invoking judicial oversight. Automatic judicial control or review forms an integral part of the safeguards guaranteed against detention without trial. The remedy of habeas corpus is available to test the lawfulness of the arrest and detention. The defence was required to provide careful justification not only for categorising this particular case as exceptional but also for the specific measures it took based on such categorisation. It should have demonstrated to the satisfaction of court that the measures derogating from the constitutional guarantee were strictly required by the exigencies of the situation and the case.
  22. Considering, without deciding, that such a margin of appreciation exists in favour of the police, even then in exercise of its supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of the exigencies of the case. The burden rested on the defendant to satisfy the Court that such exigencies really existed in this case, such as the need; to obtain or preserve relevant evidence; to permit completion of an examination or analysis of any relevant matter with a view to obtaining evidence; and that the investigation connected with the detention was being conducted diligently and expeditiously. The exigencies of any case though can never be taken to the point of impairing the very essence of the right guaranteed by article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995, that is to the point of effectively negativing the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority.
  23. In the instant case the plaintiff was arrested on Saturday 12th May, 2012. The period of 48 hours within which he should have been brought before a magistrate was to end at 5.00 pm on Tuesday 15th May, 2012.By that date the police had the statement of an eye-witness and forensic evidence to support a charge. It would appear that at the time he was arrested, sufficient and usable evidence had been obtained during the police investigation that would undoubtedly have supported a charge against him and on basis of which he could have been produced before a Magistrate. The defence has not advanced evidence or explanation of any features of the investigation then left to be done, as to justify further detention until 17th May, 2012 without presenting the plaintiff before a Magistrate. To find that the extended detention was justified would be an unacceptably wide interpretation of the plain meaning of the expression "in any case not later than forty-eight hours from the time of his or her arrest," in the circumstances of this case. An interpretation to that effect would import into article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995, a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision.
  24. While impediments to the completion of an investigation may arguably justify additional time, general conditions of understaffing or budgetary constraints do not. Detention pending a formal charge must be based on an individualised determination that it is reasonable and necessary, taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime, none of which have been advanced in this case. Since there is no statutory derogation from the constitutional guarantee, when delays become necessary, investigators must reconsider alternatives to pre­charging detention. Apart from the reasonable suspicion that the plaintiff had committed an offence of adulteration of drinking water, no explanation was advanced as to why he was held in detention for the period after 5.00 pm on Tuesday15th May, 2012. Only very compelling reasons would persuade the Court that his further detention of slightly over one day was justified.
  25. Accordingly, further detention of the plaintiff from then until Thursday 17th May, 2012, without charge in a Court of law, fell outside the strict constraints as to time. It breached this constitutional provision and was therefore a violation of his right to personal liberty, guaranteed by Article 23 that requires persons detained on suspicion that they have committed an offence to be brought to court within forty-eight hours of their arrest, or be released. This issue therefore is answered in the negative. The plaintiff's detention was unlawful in that he was not informed immediately, in a language that he understands, the reasons for the arrest and he was not brought to court as soon as possible, and in any case within forty­eight hours from the time of his arrest, yet he was not released before expiry of forty-eight hours from the time of his arrest.

Third issue;                     whether the defendant is liable.

Fourth issue;                   what remedies are available to the parties.

  1. The two issues will be considered contemporaneously. The plaintiff was detained at the Gulu Central Police Station, which is a government facility officially recognised as a place of detention, from Saturday 12th May, 2012 until Thursday 17th May, 2012. The Principal or employer cannot be held liable unless the agent or employee is liable. For that reason, section 3 (1) of The Government Proceedings Act, Cap 77 provides that no proceedings may lie against the Government in respect of any act or omission of a servant or agent of the Government "unless the act or omission would, apart from the Act, have given rise to a cause of action in tort against that servant or agent or his or her or estate."
  2. Vicarious liability of the principal or employer is thus founded on the primary or direct liability of the agent or employee. Under that doctrine, the Principal or employer is thus a joint tortfeasor with the agent or employee. According to that section, Government is subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents, where such conduct would have given rise to a cause of action in tort against that servant or agent or his or her or estate.
  3. According to the East African Cases on the Law of Tort by E. Veitch (1972 Edition) at page 78, an employer is in general liable for the acts of his employees or agents while in the course of the employer's business or within the scope of employment. This liability arises whether the acts are for the benefit of the employer or for the benefit of the agent. In deciding whether the employer is vicariously liable or not, the questions to be determined are: whether or not the employee or agent was acting within the scope of his employment; whether or not the employee or agent was going about the business of his employer at the time the damage was done to the plaintiff. When the employee or agent goes out to perform his or her purely private business, the employer will not be liable for any tort committed while the agent or employee was a frolic of his or her own.
  4. An act may be done in the course of employment so as to make his master liable even though it is done contrary to the orders of the master, and even if the servant is acting deliberately, wantonly, negligently, or criminally, or for his own behalf, nevertheless if what he did is merely a manner of carrying out what he was employed to carry out, then his master is liable (see Muwonge v. Attorney General [1967] EA 17). On basis of the evidence availed to court, I find that the plaintiff has proved on the balance of probabilities that failure by the police at Gulu Central Police Station to inform him immediately, in a language that he understands, the reasons for his arrest and their failure to bring him to court as soon as possible, and in any case within forty-eight hours from the time of his arrest, yet he was not released before expiry of forty-eight hours from the time of his arrest, were omissions that occurred within the scope and in the course of employment of those police officers so as to make their master, the defendant, liable even though they any have acted contrary to the orders of the master, the defendant.
  5. Concerning remedies for the violation, generally, the term "remedy" can be understood to refer to the range of measures that may be taken in response to an actual or threatened violation of human rights. A remedy involves two elements: a victim’s access to court to have his or her claim fairly heard and decided; and the redress or relief that he or she can receive. The remedies should be effective, dissuasive and proportionate. The range of remedies might include: interim measures (such as cessation of the violation, injunctions against further actions, guarantees of non-repetition); adequate reparation (such as an order to remediate, rehabilitation, monetary compensation, restitution); satisfaction (including declarations, access to truth about violations, a public apology); and criminal punishment of the individual violator(s).
  6. Many human rights treaties enshrine the customary right to compensation for unlawful arrest and detention (see Article 2 (3) of The International Covenant on Civil and Political Rights (ICCPR), Article 8 of The Universal Declaration of Human Rights, (UDHR), and Article 85 of The Rome Statute of the International Criminal Court). The right to an effective remedy is the obligation to provide a judicial relief when a violation of a right is established. The remedy must be effective in practice as well as in law. It entails a double dimension: on the one hand, the procedural right to an effective access to a fair hearing, and on the other hand, the substantive right to an adequate redress. The remedy must be sufficient to ensure observance of rights in issue, by guaranteeing real and effective judicial protection.
  7. By way of comparison, although African Charter on Human and Peoples' Rights does not provide specifically for the right to an effective remedy, in Jawara v. The Gambia (2000) AHRLR 107 (ACHPR 2000) para 32, the African Commission set out the three elements of a remedy under the Charter: availability, effectiveness and sufficiency. The Commission sated; "a remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint.” Therefore, a remedy is only effective if it aims at restoring the person’s position back to that which it would have been had the violation not occurred, rectifies a definite violation, and prevents violations in the future. The remedy should be able to provide for general deterrence (ex ante dissuasion from violation); should aim at restoration of harm (if possible restitutio in integrum)', proportionate; and should aim at prevention of future harm. The effectiveness of the legal remedy should be evaluated on the basis of the factual circumstances.
  8. Therefore the appropriate effective remedy will depend on the particular facts of each case (see Behangana Domaro and another v. The Attorney General, Constitutional Petition No. 53 of 2010). The effectiveness of a remedy manifests itself in the sense either of preventing the alleged violation or its continuation, or in providing adequate redress for any violation that had already occurred. In extreme or appropriate cases, where victims who have suffered gross violations or substantial impairment of their fundamental rights, they ought to receive adequate, effective and prompt compensation for the harm suffered, which includes: restitution, damages, rehabilitation, satisfaction and guarantees of non­repetition. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life, return to one’s place of residence, restoration of employment and return of property. In such cases, damages should be proportional to the gravity of the violations and the harm suffered.
  9. Human rights instruments demand that an adequate, effective and prompt remedy be available for individual victims of such violations. Whereas the State's failure to comply with the Constitution by holding a person beyond 48 hours is to be frowned upon whenever it occurs, an award of damages is not always the solution. There are different reliefs available depending on the extent of violation. In most situations, administrative remedies or remedies under mechanisms of effective judicial oversight will suffice. In this context judicial oversight refers to the process by which the judiciary examines the legality of the detention in accordance with the provisions of the Constitution or any law.
  10. The first line of remedies accordingly is access to court for the person in detention to regain his or her liberty. These are to be found in section 25 (3) of The Police Act empowering any person to apply to a magistrate to order the release of such a person unless charged before a magistrate’s court within forty­eight hours unless earlier released on bond, and The Judicature (Habeas Corpus) Rules, S.l. 13- 6 for ordering the production of the person in court for the court to inquire into the circumstances of the detention. The promptness of judicial control of arrests and detentions is of special importance for the prevention of arbitrary arrests and detention. Sections 24 (4) and 25 (3) of The Police Act, provide that any person who has reason to believe that any person is being unlawfully detained under the general power of police to arrest, may apply to a magistrate to have such person released with or without security, unless charged.
  11. The alternative is an application for habeas corpus (see articles 23 (9) and 44 (d) of The Constitution of the Republic of Uganda, 1995; Section 34 (a) of The Judicature Act and The Judicature (Habeas Corpus) Rules SI 13-6). The Court must then establish whether the grounds given to justify the continued deprivation of liberty. Where such grounds are relevant and sufficient, the Court must also be satisfied that the prosecution has displayed special diligence in the conduct of the proceedings. In such proceeding, the court examines not only compliance with the procedural requirements of arrest and detention but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. The plaintiff did not invoke any of these remedies since the unlawful detention ended slightly over one day.
  12. It is mainly in situations of serious or gross violations or substantial impairment of fundamental rights, or arbitrary and prolonged violations that general damages are ordinarily awarded for economically assessable harm, as appropriate and proportional to the gravity of the violation and the circumstances of each case, such as: physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; and costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
  13. While under article 50 (1) of The Constitution of the Republic of Uganda, 1995, the violation of any human right gives rise to a right to redress for the victim, which may include compensation, for the award of general damages particular attention is paid to gross violations of human rights and fundamental freedoms. The focus is on violations and situations that constitute serious obstacles to the full enjoyment of all human rights, such as arbitrary and prolonged detention. Whether a violation is serious or gross or a substantial impairment of fundamental rights cannot be answered in isolation, without considering context, as well as the object and purpose of article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995. The nature of the right violated is not the only factor that renders human rights violations gross or grave. The character of the violation must also be considered alongside the extent of its effects and the intention of the perpetrator.
  14. The deprivation of liberty is arbitrary in cases where: (a) it is clearly impossible to invoke any legal basis justifying the deprivation of liberty; (b) the deprivation results from the exercise of other fundamental rights or freedoms, including; freedom of opinion and expression, freedom of assembly, freedom of association, and the right to privacy; (c) the total or partial non-observance of the Constitutional norms relating to the right to a fair trial of such gravity as to give the deprivation of liberty an arbitrary character; (d) prolonged administrative custody without the possibility of administrative or judicial review; (e) the deprivation of liberty is motivated by reasons of discrimination based on the type and vulnerability of the victim; birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; disability or other status, which aims towards or can result in ignoring the equality of human rights. It denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule.
  15. The seriousness of a violation is gauged according to the public conscience, that is to say the disapproval it gives rise to, the shock it provokes, the degree of horror it arouses. Whether a particular violation is a de minimis deviation from a prescribed standard must be determined with reference to the purpose of the standard, which in the case of article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 is the prevention of detention of people without charges and without the possibility of bail, and the fact that longer detention in the custody of law enforcement officials without judicial control unnecessarily increases the risk of ill-treatment, torture and cruel, inhuman or degrading treatment.
  16. In the area of remedies for human rights violations, two principles emerge; on the one hand the principle that every invasion of a private right imports an injury and that for every injury the law gives a remedy (ubi jus ibiremedium) and on the other the principle that the law does not concern itself with trifles (de minimis non curatlex). It is a general rule under common law that every invasion of a private right imports an injury and that for every injury the law gives a remedy. In pursuit of this principle, a party who proves a violation of his or her constitutional rights is entitled to nominal damages even when there is no actual injury. By making deprivation of such constitutional rights actionable for nominal damages without proof of actual injury, the law recognises the importance to organised society that those rights be scrupulously observed, in situations where leaving these violations un-remedied may contribute to an ambient lawlessness that can foster bigger harms by sending a larger signal that no one cares.
  17. It has accordingly been decided by some courts that violations of constitutional rights are never de minimis (see Lewis v. Woods, 848 F.2d 649 at 651(5th Cir. 1988) and Elk Grove Unified School District v. Newdow,542 U.S. 1, 36-37 (2004).They proceed on the premise that every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the courts did not, in appropriate cases, award such damages as to make an example of those who set at nought the constitutional rights of others. Further that there are no de minimis violations of the Constitution; no constitutional harms so slight that the courts are obliged to ignore them.
  18. However on the other hand, under the de minimis doctrine, a violation may be held to be so minimal as to not be of the concern of the law. Some courts have held that the de minimis rule applies in the field of constitutional torts (see Bart v. Telford, 677 F.2d622, 625 (7th Cir. 1982 and Crawford-El v. Britton, 93 F.3d 813). Minor harms do not rise to constitutional proportions. Violations are considered to be de minimis unless they are of a nature repugnant to the conscience of mankind.
  19. The "de minimis non curatlex," rule is a long-established principle of the common law which translates as "the law does not concern itself with trifles." It applies to violations that are so small or trifling that the law takes no account of them. It effectively means that the law should not get involved in circumstances where what has occurred is extremely trivial. The law does not encourage parties to bring legal actions for technical breaches of rules where the impact of the breach is negligible. The de minimis principle is not intended to suggest that any violation of the Constitutional rights is not serious or is somehow excusable but signifies that a certain level or magnitude of violation is necessary in order not to trivialise the breach.
  20. When several remedies are available, the proportionality principle is used to select the best solution available vis-a-vis the seriousness of the violation. Since any remedy granted by court must be commensurate with the injury suffered, the court must consider the practical effects of failure to apply de minimis. Application of de minimis is particularly important in cases such as the one at hand, where damages are to be measured by pecuniary standards. Given that damages are awarded based on the principle of restitutio in integrum, there ought to be evidence adduced of considerable physical harm, psychological damage and trauma as the measure of the degree of significance of the lack of conformity in this particular case. Although such harm may be implicitly presumed in appropriate cases involving gross violations or substantial impairment of fundamental rights, on account only of the gravity of the breaches in question, this is not one of such cases.
  21. Despite the inherent value of constitutionally guaranteed rights, proof of a violation of one's constitutional rights leads to no conclusion concerning the existence of damages. The seriousness of the violation depends on its intensity, on the (particularly) serious consequences of the violation, and on its duration. Not all rights protected in the Constitution are of identical importance. For example, a violation concerning the derogable rights is, at least prima facie, of less intensity compared to that relating to the non-derogable rights, establishing an implicit hierarchy of Constitutional rights.
  22. A de minimis situation exists when the police comply with the clear intent of the reasonable suspicion standard but deviates from the particular requirements of article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 in a manner that poses no direct or immediate threat to life or limb nor occasions an undue hardship, significant difficulty or expense. Each case is to be assessed according to its special features.
  23. For example in CpI. Opio Mark v. Attorney General, H.C. Civil Suit No. 611 of 2006, the plaintiff sued the defendant for recovery of general and exemplary damages for unlawful arrest and false imprisonment for thirteen days, running from 8th March, 2002 up to 21st March, 2002.The court found that the plaintiff’s arrest was lawful since it was based on a reasonable suspicion. The Court however found that his detention in police custody beyond the 48 hours was unlawful by reason of being contrary article 23(4) of The Constitution of the Republic of Uganda, 1995 and section 25 of The Police Act. He was awarded shs. 5,000,000/= as general damages and shs. 1,000,000/= exemplary damages by reason of the fact that during his detention, he slept on bare cement, was attacked by lice and other insects, and the cell was dark throughout. He was dressed in a shirt and under-pant. He ate cell food since food from his family was not allowed in. While police personnel did not harass him, the inmates in the cell did so. While in detention, he was depressed, humiliated and psychologically tortured.
  24. Similarly in Martin Edeku v. Attorney General, H.C. Civil Suit No.93of 1989: [1995] VI KALR 24, a Police Inspector of 35 years' good service, was arrested from his office, violently tortured by being tied "Kandoya" style, whipped with a wire, kicked all over the body, burnt with a melting jerry-can and detained in several military barracks beyond 48 hours where he was subjected to hard labour, and then to a Government prison for a period of a year and two weeks. He was awarded shs. 3,500,000/= as general damages.
  25. In both cases cited above, the plaintiffs proved damage suffered beyond the mere fact of detention in excess of the 48 hours. Both suits involved elements of torture, cruel, inhuman or degrading treatment during the period of unlawful detention. It is certainly regrettable, in the instant suit, that during his detention the plaintiff was kept under squalid conditions that included sleeping on bare cement and answering the calls of nature in a bucket, but Courts require more than ordinary hardship to establish constitutional harm. The Constitutional protection is undermined when occasions of usual and expected hardship are placed on the same level as threats to life or limb and are treated as actionable wrongs. Allowing unworthy claims to proliferate without restraint is apt to tip that balance unduly in favour of suspects at the expense of law enforcement. It is also liable to burden the administration of justice unreasonably in terms of resources, costs and delay.
  26. The defendant's adverse acts complained of are of a nature that is not, wanton, vindictive or deliberately malicious. They do not rise to the level of a constitutional violation. It would trivialise article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 to hold that detention under those conditions, even for a few hours beyond the 48 hours, is always actionable no matter how unlikely it was that the person was exposed to the risk of ill-treatment, torture and cruel, inhuman or degrading treatment by such detention.
  27. The issue to be decided is therefore whether, having regard to the special features of this case, the plaintiff deserves an award of general damages. It is the view of this court that where a suspect is set free a day or so beyond the constitutional limit, often the intent of the standard will be met, and the excess hours, without more, may be de minimis. No gross violation can arise if the arrested person is released promptly before any judicial control of his or her detention would have been feasible. The court will dismiss a suit for wrongful detention if, having regard to the nature of the conduct considered to constitute a violation and the nature of the attendant circumstances, it finds that they were not unreasonable, unforeseeable or lacking in proportionality and the conduct of the defendant did not actually cause or threaten the harm or evil sought to be prevented by article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 i.e. exposure to a heightened risk of ill-treatment, torture and cruel, inhuman or degrading treatment, or did so only to an extent too trivial to warrant condemnation by way of an award of damages. The 48-hour rule is not observed for its own sake; it is a safeguard against abuse by minimising the risk of arbitrariness. Upon expiry of that period, detainees are required to be brought before court in order that the lawfulness of their detention may be monitored and an assessment made of whether the suspicions of the police are reasonable.
  28. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the plaintiff was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the Court has found, grounded the plaintiff’s arrest. A person arrested on reasonable suspicion of having committed a crime, such as the plaintiff was, cannot claim that the detention thereafter was arbitrary, that the defendant acted maliciously, wilfully or wantonly in detaining him slightly over one day beyond the constitutional limit. Certainly article 23 (4) (b) of The Constitution of the Republic of Uganda, 1995 should not be applied in such a manner as to put disproportionate difficulties in the way of the police in taking effective measures to counter crime.

Order:

  1. Consequently there is no merit in the suit. It is accordingly dismissed with no order as to costs.

Stephen Mubiru Resident Judge, Gulu

Appearances

For the plaintiff : Mr. Sylvester Duncan Opar Donge.

For the defendant : Mr. Shafiq Amuru, State Attorney.