The High Court in Kampala has ruled that the continued detention of four environmental activists arrested during protests against the East African Crude Oil Pipeline, EACOP, was unconstitutional, in a judgment that strongly reaffirmed the constitutional right to personal liberty and peaceful protest.
Justice Collins Acellam delivered the ruling on May 21, finding that although police lawfully intervened in the demonstration organised under the “Rooted in Resistance” campaign, the activists were illegally detained beyond the constitutional 48-hour limit without being produced before court.
The applicants, Vincent Nsamba Lubega, Alphonse Nkurunziza, David Musiri and Gerald Wenani, were arrested on October 4, 2022 during a protest march in Kampala as they attempted to deliver a petition to the European Union offices concerning the EACOP project.
Court heard that the activists carried placards and chanted slogans opposing the pipeline project before they were intercepted by police officers near Oasis Mall and taken to Central Police Station in Kampala.
The activists sued Attorney General, ASP Nahamya David, Police Constable James Wabwire and Police Constable Jacob Bwire Wandera, accusing them of unlawful arrest, illegal detention, torture and violation of their rights to freedom of expression, assembly and access to legal representation.
In his judgment, Justice Acellam drew a distinction between the legality of the arrest and the legality of the subsequent detention, holding that police had lawful grounds to intervene after the demonstrators allegedly obstructed traffic and refused directives to vacate the roadway.
“The Constitution protects the right to assemble and demonstrate peacefully and unarmed, it does not constitutionalize obstruction, disorder or disregard of lawful police directions made for the protection of other road users and the public,” the judge ruled.
Justice Acellam found that police intervention was justified in the circumstances and did not amount to suppression of the activists’ opposition to EACOP.
“The Applicants have not established that the Respondents’ intervention in dispersing the demonstration and arresting them amounted to an unconstitutional violation of their rights to freedom of expression, assembly and demonstration,” the ruling states.
However, the judge faulted police for detaining the activists from October 4 until October 10, 2022 without producing them before court within the mandatory constitutional timeline.
“Detention beyond that period cannot be justified by ongoing investigations, police file management, or pending perusal by the Director of Public Prosecutions,” Justice Acellam ruled.
The court emphasised that Article 23(4) of the Constitution leaves no room for administrative excuses once a suspect has spent 48 hours in custody.
“The Constitution does not say ‘forty-eight hours unless the file is still moving.’ It says, ‘not later than forty-eight hours.’ That is the end of the matter,” the judge added.
Justice Acellam consequently declared that the activists’ detention violated Article 23(4) of the Constitution and awarded each applicant Shs10 million in general damages for unlawful detention.
The court, however, declined to award punitive damages after finding insufficient evidence to prove torture, cruel treatment or deliberate abuse by the named police officers.
The judge also rejected claims that the applicants were denied access to lawyers or subjected to unconstitutional treatment during the recording of police statements, saying the allegations were not supported by sufficient evidence.
“The Court finds that the Applicants have not proved, on the evidence before Court, that they were subjected to torture, cruel, inhuman or degrading treatment contrary to Article 24,” Justice Acellam ruled.
The court further ordered each party to bear its own legal costs.
Reacting to the ruling, lawyer Eron Kiiza welcomed the court’s condemnation of illegal detention but criticised the refusal to impose punitive damages against the State officials involved.
“The declaration and judicial condemnation of illegal post 48-hours detention is laudable. So is the award of general damages which is on the lower side,” Mr Kiiza said.
“It is not sufficient since we don’t have punitive damages in a clear case of unconstitutional conduct that should be discouraged by punitive fines,” he added.
Mr Kiiza described the judgment as an important affirmation of civil liberties and environmental activism in Uganda.
“The ruling is a significant judicial affirmation of personal liberty and human dignity. It is a judicial recognition of the need to emphasize that illegal detention and concomitant human rights violations are unacceptable. It is a judicial recognition that environmental activism and peaceful protest are human rights and constitutional, and that police attitudes that criminalize such peaceful protests are illegal,” he said.
The Rooted in Resistance campaign has been among the most visible anti-EACOP movements in Uganda, with activists raising concerns over environmental degradation, displacement of communities and the impact of fossil fuel investments on climate change.
