Freedom of Association and Assembly / Protests, Political Expression
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The Ugandan High Court ruled that the confinement of a presidential candidate to his home by security forces constituted unlawful detention and ordered that the confinement be lifted. On the day of the presidential elections in Uganda, members of the Ugandan police force and army surrounded one presidential candidate’s house, maintaining that containing him and his family to their home was necessary to neutralise security threats. Although being denied access to him, the candidate’s lawyers brought a habeas corpus application in the High Court, arguing that his right to personal liberty was being infringed. Nine days after the election, the Court held that the confinement constituted detention and that as the candidate had not been brought to a police station or a magistrate it was unlawful, and ordered that the restrictions on his movements be lifted and his personal liberty restored.
Columbia Global Freedom of Expression believes that this case may be politically motivated and although this case is not legally tied to freedom of expression, it constitutes an infringement of those rights.
In November 2020, Robert Kyagulanyi – better known as Bobi Wine, and standing as a presidential candidate against incumbent Yoweri Museveni – was arrested and charged with infringing the existing Covid-19 Rules on gatherings during his campaign for the presidential election. He was released on bail on November 20, 2020 with strict bail conditions, ostensibly in accordance with Covid-19 protocols, including limiting his campaign rallies to 200 people and requiring all campaign meetings to end by 18h00.
On January 14, 2021, Uganda held its presidential election. When Kyagulanyi and his wife, Barbra Kyagulanyi Itungo, returned home after casting their votes their house was surrounded by soldiers and police officers and the Kyagulanyis were not allowed to leave. They were also denied access to their family, lawyers and doctors. On January 18, 2021, five of the Kyagulanyi’s lawyers were denied access to the house after the Kyagulanyis had made a phone call to the lawyers.
Geoffrey Turyamusiima, one of the Kyagulanyis lawyers and personal friends, approached the Court on their behalf, noting that they were unable to swear to any affidavit on their own behalf. He sought a writ of habeas corpus requiring that the Attorney General, the Chief of Defence Force and the Inspector General of Police “produce the bodies of Kyagulanyi Sentamu Robert and Barba Kyagulanyi Itungo” before the Court [p. 1].
Judge Michael Elubu delivered the judgment of the High Court. The Court had to determine whether the Kyagulanyis’ right to personal liberty was infringed by the State’s action, and whether or not to grant the habeas corpus application.
The Chief of Legal Services in the Ministry of Defence and Veteran Affairs submitted that the Kyagulanyis were “not in the custody of the Uganda Peoples’ Defence Forces” [p. 5]. The Assistant Inspector General of Police submitted that Robert Kyagulanyi was “not under Police custody … [h]e is at his residence with police giving him the necessary protection” and that the Kyagulanyis’ movement had not been restricted in any way [p. 5]. The Assistant Inspector General argued that Kyagulanyi had breached his bail conditions by holding campaign rallies on November 23, 2020, and December 1 and 8, 2020 which had more than the stipulated 200 attendees. He added that there were serious security concerns given statements made by Kyagulanyi after the election to “make Uganda ungovernable” and that he had “in the past incited riots”. The Assistant Inspector General described the security forces’ conduct as being “preventative action by the Uganda Police Force with the aim of neutralising security threats that have been detected by the security organs” and that the restrictions on Kyagulanyi’s movement “are in the interest of protection of life and property” [p. 8]. He also denied that Kyagulanyi had been denied access to his lawyers.
The State respondents also submitted that as the Kyagulanyis were not being held in a “designated Government facility”, a habeas corpus application was inappropriate, and that Barbra Kyagulanyi Itungo’s movement “have not been restricted in any way” [p. 12].
The Court ruled that it was not possible to determine the nature of the Kyagulanyis’ detention without examining the evidence, and so rejected the State’s argument that this was not a proper habeas corpus matter and so should be summarily dismissed. In respect of Barbra Kyagulanyi Itungo’s right to liberty, the Court noted that the State denied that her movements had been restricted and therefore ordered “the immediate restoration of [her] full personal liberty” [p. 12].
In assessing the evidence, the Court held that it was clear that Kyagulanyi had been “confined” to his house and that – although they maintained that it was for his security – the State did “concede that the applicant’s movements have been restrained by confining him to his home” [p. 14]. The Court quoted the Black Law Dictionary’s definition of liberty as “[f]reedom from arbitrary or undue external restraint, esp. by a government” and concluded that Kyagulanyi’s liberty had been curtailed [p. 14]. Accordingly, it held that the Court could conduct the habeas corpus hearing.
The Court then examined the State’s justification that the deprivation of Kyagulanyi’s liberty was “preventative action to protect life and property” [p. 15]. Section 24 of the Police Act Cap 303 permits a police officer to arrest and detain a person if they have “reasonable cause to believe” that it is necessary to prevent physical injury, damage to property, an offence against “public decency in a public place”, “unlawful obstruction on a highway” or “harm or undue suffering to a child or other vulnerable person” [p. 15]. However, the Police Act requires that any person who is arrested under section 24 be taken to a police station or a magistrate. The Court held that this provision would therefore not apply as the State had not arrested Kyagulanyi and had not taken him to a police station or a magistrate. Accordingly, the Court held that the deprivation of liberty could not be a lawful “preventative arrest” [p. 16].
The Court acknowledged that “[t]he more pertinent questions” are the allegations that Kyagulanyi and his political party are inciting riots and insurrection and noted that “it is true these are all serious allegations of grave offences” [p. 16]. However, it stressed that the State should follow the “due process of the law” and either bring Kyagulanyi to trial or remove the restrictions. The Court referred to article 23 of the Constitution which addresses the rights of arrested and detained persons. The article protects the right to personal liberty and stipulates that any arrest and detention can only be in a “place authorised by law”, as well as requiring that any person who is arrested and detained must be brought before a court within 48 hours of arrest and that they be permitted access to medical and legal services. Article 23(9) expressly provides for the right to an order of habeas corpus.
The Court referred to the Supreme Court’s case of Obbo v. Attorney General No. 2 of 2002, in emphasizing that the primary purpose of constitutionally-protected rights is their protection and that limitations will only ever be the secondary purpose, permitted only in “exceptional circumstances” [p. 18]. It also mentioned the Kuteesa v. Attorney General Const. Petition. No. 46 of 2011 case which had highlighted that “the preservation of personal liberty is so crucial in the Constitution that any derogation from it … is just temporary and not indefinite” [. 18-19].
Accordingly, the Court held that “the continued indefinite restriction and confined restriction of the Applicant, to his home, is unlawful” and that his right to personal liberty had therefore been infringed [p. 19]. The Court ordered that the restrictions on Kyagulanyi be lifted and that his personal liberty be restored. The Court also ordered that Kyagulanyi comply with Covid regulations.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although this judgment focused predominantly on the right to personal liberty, it confirmed that a political opponent cannot be detained without due process and so expands the right to freedom of political expression in Uganda.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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