High Court Holds That a Lawful Arrest Does Not Immunize Police from Liability for Acts of Torture Committed During Custody; Freedom from Torture under Article 44(c) Is Absolute and Non-Derogable

Waboga David
Jan 23
6 min read

Facts

The Applicant, Munezero Fred, instituted an application under Article 50 of the Constitution seeking redress for alleged violations of his fundamental rights by officers of the Uganda Police Force.

On 14 May 2024, while digging in his garden at Nyamabuye Village, Kisoro District, the Applicant was arrested by the Officer-in-Charge of Nyabushinya Police Post following a complaint by the 1st Respondent, Sole Elisa, alleging obtaining money by false pretence. The dispute arose from a land transaction in which the Applicant had received UGX 7,000,000 as part payment but allegedly failed to give vacant possession.

The Applicant alleged that during arrest and detention, he was beaten and tortured, detained overnight, and later coerced into depositing UGX 1,000,000 as compensation. He was released on police bond within 48 hours.

Subsequently, the Applicant sought medical treatment at Rutaka Health Centre III, where injuries consistent with assault were documented by a government health worker.

The Applicant sued both the complainant (1st Respondent) and the Attorney General (2nd Respondent) for constitutional violations, seeking declarations and damages totaling UGX 240,000,000.

ISSUES

Whether the rights and freedoms of the applicant were infringed upon by the actions of the 1st and 2nd respondents' agents
Whether the applicant was entitled to the remedies claimed

A preliminary objection was also raised as to whether the pleadings disclosed a cause of action against the 1st Respondent.

Submissions

Applicant's Submissions:

The Applicant argued violations of personal liberty (Article 23(3) and (4)(b)), human dignity and protection from inhuman treatment (Article 24), freedom from torture (Article 44(c)), and right against self-incrimination (Article 28(3)(a) and (11)).

The Applicant also claimed the arrest was unlawful and arbitrary, without reasons provided at the time; detention exceeded limits; torture occurred during custody; and police coerced self-incrimination and payment in a purely civil contractual dispute.

He supported his claims by affidavits (including medical evidence) and sought serious damages due to pain, agony, and reputational harm. Cited cases like Uganda Commercial Bank v Kigozi [2002] 1 EA 305 for general damages and Bank of Uganda v Tinkamanyire (SCCivApp No. 12/2007) for aggravated damages.

On the preliminary objection, prayed for striking out the 1st Respondent's late filings.

1st Respondent's Submissions:

Denied liability, asserting no cause of action against him as a mere complainant. All impugned actions (arrest, detention, torture, coercion) were by police (2nd Respondent's agents).

Corroborated the sale agreement and Applicant's admission of receiving UGX 7,000,000 and partial refund of UGX 1,000,000 via police.

Argued the application disclosed no violation by him, citing Auto Garage v Motokov No.3 [1971] EA 514, Cooke v Gull (LR 8 E.P. 116), and Read v Brown (22 QB 32) on cause of action.

2nd Respondent's Submissions:

Denied violations, asserting the arrest was lawful under Sections 4 and 23(1) of the Police Act (reasonable suspicion of obtaining money by false pretence, a cognizable offense). Detention was within 48 hours (Section 25(1), Police Act), and bond was granted. Denied torture, claiming no injuries observed at Kisoro CPS, no complaint filed, and the medical report was suspicious (afterthought, performed a day after release by unqualified personnel). Cited the Prevention and Prohibition of Torture Act (Cap 130) but argued no evidence of intent to extract a confession.

Argued the matter was criminal, not purely civil, as the Applicant admitted refusing a refund, justifying police intervention under Sections 25-26 of the Criminal Procedure Code Act. Claimed bad faith to evade prosecution.

On remedies, opposed damages, noting lawful police actions and Applicant's belligerence.

Legal Representation

Applicant: M/s Elgon Advocates
1st Respondent: M/s Bikangiso & Co. Advocates
2nd Respondent: Ms. Anna Kanyago, Senior State Attorney (Attorney General’s Chambers)

COURT'S FINDINGS

Preliminary Objection – Dismissed as Moot

The Court found no cause of action against the 1st Respondent, making the timing issue irrelevant.

No Cause of Action Against 1st Respondent

The Court held:

"A cause of action is disclosed when it is shown that the plaintiff has a right and the right was violated resulting in damage and the defendant is liable."

All complained actions (arrest, detention, torture, money collection) were committed by police, not the 1st Respondent. Application dismissed entirely against 1st Respondent.

(b) Lawfulness of Arrest and Detention

The Court held that the arrest was lawful, based on a legitimate complaint and within the mandate of police under the Police Act and Criminal Procedure Code.

“I find that the applicant was released within the mandated 48 hours on police bond.”

No violation of Articles 23 or 28 of the Constitution was established in respect of arrest, detention, or self-incrimination.

(c) Torture and Ill-Treatment

Despite the lawful arrest, the Court found that the Applicant was subjected to torture while in police custody.

“Torture is torture, and should not be justified in any circumstance. Police are state custodians of law and order and any police action must be authorised by law. Torture negatives the police power.”

The Court accepted the medical evidence from a government health facility and held that once such evidence was adduced, the burden shifted to the State to rebut it.

“In the absence of a rebuttal, the allegation of torture by the servants of the 2nd respondent is upheld.”

The Court observed that the investigating Officer Kansiime was not proper person to rebut torture allegations, Arresting officer's denials were "self-serving" Medical evidence from government facility required rebuttal by similarly or better qualified personnel. 2nd Respondent failed to conduct investigation or provide counter-evidence

Violation of Articles 24 and 44(c) of the Constitution confirmed.

Self-Incrimination

Evidence showed information voluntarily provided by applicant and 1st Respondent.

4. Criminal vs. Civil Matter

Police Action though lawful Court rejected applicant's argument that matter was purely civil, finding police had legitimate basis to charge obtaining money by false pretence.

HOLDING

Against 1st Respondent:

Application dismissed in its entirety
No order as to costs

Against 2nd Respondent:

Application succeeds in part
Declaration granted that applicant's freedom from cruel, inhuman, degrading treatment and torture was violated by Uganda Police
Compensation awarded: UGX 2,000,000 (general damages)
Interest at court rate until payment in full
Half of taxed costs awarded to applicant
Inspector General of Police directed to investigate torture allegations and file report within 90 days

Damages Claims Rejected:

Aggravated damages denied (arrest was lawful with legitimate complaint)
Exemplary damages denied (no exceptional circumstances warranting punishment)
Special damages denied (no receipts or proof of expenditures; treatment at government facility)
Refund of UGX 1M denied (applicant admitted owing 1st Respondent)

KEY TAKEAWAYS

1. Burden of Proof in Torture Cases

Once medical evidence from a government medical facility is tendered, the burden shifts to the state to rebut with similar or superior medical evidence. Mere denials by investigating officers or alleged perpetrators are insufficient.

2. Evidentiary Standards for Rebutting Torture Allegations

The Court established that medical evidence from government facilities carries significant weight and requires:

Counter-evidence from similarly or better qualified medical personnel
Formal investigation by police supervisors
Not merely statements from involved officers (considered self-serving)

3. Cause of Action Requirements

A petition for the enforcement of human rights must establish how each named respondent violated the applicant's rights. Being a complainant who initiated police action is insufficient to establish liability.

4. Lawful Arrest vs. Unlawful Conduct

A lawful arrest does not immunize police from liability for torture during custody. The Court separated the legality of arrest from subsequent treatment.

5. Civil vs. Criminal Matters

Obtaining money by false pretence under a sale agreement can constitute a criminal offense, not merely a civil dispute, when fraud is alleged.

6. Limited Damages Where Arrest Lawful

Courts will not award aggravated or exemplary damages when the initial arrest was lawful and based on legitimate complaints, even if subsequent torture occurred.

7. Mandatory Investigation Directive

Courts can direct the Inspector General of Police to investigate torture allegations and report back, ensuring accountability beyond monetary compensation.

8. Constitutional Protection from Torture is Non-Derogable

The Court emphasized that freedom from torture under Article 44(c) is absolute and cannot be justified under any circumstances, even where the victim was belligerent or had committed civil wrongs.

Practical Implications

This decision reinforces that while police have legitimate powers of arrest, they remain accountable for treatment of suspects in custody. Medical evidence from government facilities carries substantial evidentiary weight, and the state bears the burden of rebutting torture allegations with credible counter-evidence, not mere denials

Read the full case