Uganda’s high court has encouraged many with its ruling that opposition leader Bobi Wine should be freed from what has effectively been a period of house arrest, during which security forces outside his home refused to let anyone go in or out. Given the atmosphere of tension and fear in the country, there was keen public interest in how the court would handle a matter which so obviously involved crossing the government and acting independently.
If there was any pressure on the court, it was not obvious.
In the end, Judge Michael Elubu ordered the withdrawal of the security forces who had been laying siege to the home of opposition leader Robert Kyagulanyi Ssentamu, popularly known by his stage name of Bobi Wine, and his wife. Moreover, the judge did so in clear and unequivocal terms; no ifs and buts. Noteworthy too, was that there was no hesitation or delay in arriving at this decision. It was written and delivered in just a few days. This is in the best rule of law traditions that say when the liberty of the subject is at stake, a court must act with particular speed.
Lawyers acting for the political leader said that the couple had been confined to their home, with ‘security operatives’ refusing to let them out. The commanding officers had given no reason for detaining them in their home and they were thus being ‘held’ or detained illegally.
Since the evening of 14 January (the day of Uganda’s general election) the place had been surrounded by soldiers and police officers and they had been held without any access to their lawyers, family, doctors, ‘or anyone from the outside world’.
Their continued detention was illegal and an infringement of their constitutional rights. Not only had they been barred from going out, no one – not even their lawyers – had been allowed to go in.
A defence force brigadier said that the defence force was only present at the house in a ‘supporting role’ and at the invitation of the police who remained in ‘overall command and control’.
The senior police officer involved in the matter said that Ssentamu was ‘not under police custody’. Quite the opposite: ‘He is at his residence with police giving him the necessary protection’.
The officer claimed that the wife and other members of the household had ‘not been restricted in any way’. Police needed to act in relation to Ssentamu as he had organised meetings that breached the country’s Covid-19 regulations and the Penal Code Act.
There had been consistent and blatant breaches of Covid-19 regulations during his election campaign. Some of the meetings he organised became riotous and the police had undertaken ‘preventive action’ outside his house to ‘neutralise’ security threats ‘that have been detected’ by security intelligence.
After an initial tussle over whether an affidavit was a scanned copy or an original, and whether it had been properly signed, the court agreed to accept the document, and moved onto the substantive issues.
Since the senior officer had stated that Ssentamu’s wife, Barbara Kyagulanyi Itungo was ‘not under any kind of restriction’, even though her lawyers said she was indeed restricted, the court had no hesitation in ordering the ‘immediate restoration of [her] full personal liberty’.
What about Ssentamu himself? He was not being held in a gazetted detention centre, ‘but in his own home’. The evidence clearly showed that he had been confined to his house since 14 January 2021. ‘By their own admission, [the police] concede that [Ssentamu’s] movements have been restricted by confining him to his home.’
The judge asked if their actions amounted to ‘restricting his liberty’ and concluded that the police had indeed curtailed Ssentamu’s personal liberty. The court therefore had a mandate to inquire into the legality of his continued confinement at his home ‘as it amounts to a deprivation of personal liberty.’
Judge Elubu said since the police claimed to have evidence of criminal activities ‘it would be proper to follow the due process of the law with regard to all the allegations’.
‘The options are to produce the applicant in court to face trial or to lift the restrictions.’ The right to an order of habeas corpus was inviolable, according to the constitution, ‘and shall not be suspended’, he stressed.
Ssentamu had been held from 14 January on the allegations of the police, so the fundamental rights of the constitution would apply ‘with full force,’ the judge said. In essence, this meant that police could only detain someone for the purpose of bringing that person to court.
‘Having considered all the circumstances of this case, it is my finding that the continued indefinite restriction and confinement of [Ssentamu] to his home, is unlawful. …
‘Having found, as I do, that the restrictions imposed on [Ssentamu] are unlawful, it is hereby ordered that they are lifted. Consequently, an order for the restoration of [his] personal liberty … hereby issues.’
There was a little frolic at the end of the judgment: the police asked the court to order that Ssentamu comply with the regulations regarding Covid-19. Judge Elubu responded, ‘This court takes judicial notice of the virulent nature of Covid-19 and the public health necessity to comply with the standard operating procedures. It is therefore hereby directed that [Ssentamu] shall comply with [these standard operating procedures].
Once the judgment was finally delivered, however, it took almost another full day before the security forces finally withdrew and allowed Ssentamu to come and go freely.
Among those who had tried to gain access to him in his house during the police siege was the US ambassador. She was, however, refused permission to go in, with the Ugandan government commenting that she was ‘meddling’ and ‘subversive’.