Constitutional Court blames police for human rights violation

By Vision Reporter

The Constitutional Court has directed the High Court to determine damages the state should pay to a couple the Police in Mbarara illegally arrested, held incommunicado and tortured during detention.

The couple; Domaro Behangana and Mangadalen Behangana Birungi, petitioned court, complaining that the Rapid Response Unit, Mbarara, led by its Jimmy Okiror and Milton Gumisiriza arrested them, one after the other on different days; beat, caused bodily harm and trauma.

They asked the court to order the Government to pay them general, punitive and aggravated damages after the Police in Mbarara illegally held them incommunicado and beyond the statutory 48 hours.

The court, on Monday, directed the High Court to hear and determine the compensation in special, general, exemplary and aggravated damages to the spouses that suffered violation of their rights.

Justices Augustine Nshimye, Eldad Mwangusya, Richard Buteera, Prof Lillian Tibatemwa-Ekirikubinza and Frederick Egonda-Ntende presided over the court. 

The petitioners asked the court to order the state to compensate them in sh2b for the Police’s arbitrary, unconstitutional, oppressive and high-handed arrest and illegal detention during which they were refused to see their relatives and lawyers as they underwent brutal torture.

They also asked the court to order the state to pay for the confiscated motor spare parts estimated to be worth sh118,648,000; refund sh370m the police took from the mother of one of them; sh4.505m taken from petitioners; sh3m as fees and necessities for their children and over sh2.5m being medical costs.
 
Behangana alleged that upon arrest the police officers seized from him sh4,505,000, a voter’s card, shoes, belt and clothes. The police further allegedly seized motor spare parts worth a total of sh81,738,000. The police also took away his two phones worth sh1.2m, all of which they refused to return to him, hitherto.  
  
Behangana, a dealer in motor spare parts in Mbarara town, told court that upon arrest on July 3, 2010 the police falsely accused him that while driving his motorcar Reg. No MAJ 366E, knocked a policeman and robbed him of his gun.

The court also dismissed with costs arguments in which Senior State Attorney Goretti Arinaitwe had submitted that the petitioners had no case that called for Constitutional interpretation.

The attorney had also argued that the court had no jurisdiction to hear the petition and ;further  that the petition sought to enforce rights rather than constitutional interpretation.

However, the court agreed with Dr James Akampumuza, who submitted that the petitioners had disclosed a grave violation of the Constitution by the Police at Mbarara with their acts or omissions.

“We are satisfied that this court has jurisdiction to entertain this matter. The arrest and detention of the petitioners without any charge being preferred against them within 48 hours of their arrest or even beyond the 48 hours constitutional standards before any court of competent jurisdiction, was an unconstitutional infringement of the fundamental right to liberty, which is protected by the Constitution.

The court noted: “In the absence of a reply against the petition by the Attorney General, we accept the unchallenged evidence of the petitioners. Arrest and detention of the petitioners beyond the 48 hours constitutional standards before any court of competent jurisdiction was an unconstitutional infringement of the fundamental right to liberty that is protected by the Constitution.
 
Holding the petitioners incommunicado, denying their next of kin or relatives and lawyers to have access to them, while in detention, was clearly in contravention of the Constitution,” the court ruled.