Brief facts

Aambi's husband, Hajj Senseseko was picked by ODR security operatives in December 2018. For over
two months, there was no information of the whereabouts of Hajji Ssenseko. A week after his arrest, ISO
operatives came to Hajji Ssenseko's residence in Kitebi and proceeded to search his house without a
search warrant

In February 2019, Hajji Ssenseko's lawyer applied for a writ of Habeas Corpus which was denied by the
High Court. At the same time his captors play gospel music yet Hajji Ssenseko who is being held is a
devoted Muslim. Last week the case of Hajji Ssenseko was transferred to a newly created Anti-
Terrorism Court' where army men sit as judges

Law applicable

The 1995constitution of Uganda as ammended

Statutes

African charter on human and peoples right

Case law

Legal issues arising

(1) Whether Hajji Ssenseko constitutional rights were violated.

(2) Whether nambi has any remedies.

Resolution

Legal issue 1

Article 2(1) of the constitution of Uganda is to the effect that the Constitution is the supreme law of
Uganda a and shall have binding force on all authorities and persons throughout Uganda, moreover
under clause (2) of the same article provides that any other law or any custom is inconsistent with any
of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall,
to the extent of the inconsistency, be void. This manifestly seen in the case of Charles Onyango obbo
and Andrew Mwenda v A.G where the two petitioners challenged the constitutionality of section 50 of
the penal code contravened the provisions of the constitution under article articles 29 (a) and (e), 40 (2)
and 43 of the Constitution.

The Constitution of Uganda particularly article 44 prohibits derogation from a particular human rights
and freedom which include freedom from torture and cruel, inhuman or degrading treatment or
punishment, freedom from slavery or servitude, the right to fair hearing, the right to an order of habeas
corpus. The constitution guarantees the protection, promotion and respect of these fundamental human
rights as they are inherent in nature and not granted by the State. This doctrine was exemplified in the
case of Rev Christopher Mtikila v A.G of Tanzania where the court held that fundamental human rights
are not gifts from the state. They are in here in a person by reason of his birth and therefore prior to the

state and the law. The same rights are further stated under article 2 of African Charter on Human and
Peoples' Rights (Banjul Charter) which postulates that Every individual shall be entitled to the
enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status.

Article 22(1) of the 1995 constitution of Uganda provides that no person shall be deprived of the right to
life intentionally except in execution of a sentence passed in a fair trial by a court of competent
jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence
have been confirmed by the highest appellant court. The deprivation of life by way of a capital
punishment or death penalty remains controversial. Different arguments have arisen for the
unconstitutionality of the death penalty with the significant being that it contravenes with article 24 that
provides for respect of human dignity and protection from in human treatment. The argument is on two
grounds that is;

 The act is inhuman and dehumanizes those who participate in the execution of the death
penalty.
 The death row phenomenon occasioned by delays in carrying out the death sentence amounts
to in human treatment.

Different safe guards have been included in article 22 of the 1995 constitution to ensure that
the right to life may not be arbitrarily taken away;
I. It must be confirmed by the highest appellant court
II. In a fair trial as per article 28(1)
III. In respect of criminal laws of Uganda as per article 28(7) and 28(12)
IV. It must be passed by the court of competent jurisdiction.

There has always been debate as to whether article 22 constitutionalizes the death
penalty or recognizes the existence of the death penalty. The Odoki commission report
shows that that retention of the death penalty for heinous offences was on account that
it was supported by majority of Ugandans.

In Susan Kigula v A. G, the petition was brought under article 137(3) of the constitution
of the republic of the Uganda challenging the constitutional validity of the death
sentence. The petitioners were at the time of filing the petition on the death row,
having been convicted of offences under the laws of Uganda.
The petitioners contended that the imposition of the death penalty on them was un-
constitutional because it is inconsistent with articles 24 and 44 of the constitution which
prohibit cruel, inhuman, or degrading punishment or treatment.

The petitioners contended that various provisions of the law which provide the
mandatory death sentence are inconsistent with articles 20,21,22,24,28 and 44 of the
constitution.
Secondly, they contended that the long delay between the pronouncement of the death
sentence and carrying out of the sentence allows for a death row syndrome to set in.
carrying out the death sentence after such a long delay constitutes a cruel, inhuman,
and degrading treatment prohibited by articles 24 and 44 of the constitution.
Thirdly, section 99(1) of the trial indictment act cap 23 laws of Uganda which provide
for hinging as the legal mode of carrying out death sentence was cruel degrading and
inhuman. Court therefore set aside the death sentence imposed on the petitioners.

In the Kotido executions, two members of the armed forces namely; corporal James
Omediya and private Abdullah Muhammed attached to the B company of the 67th
battalion of the Uganda Peoples Defense Force were executed by firing squad for
allegedly killing one reverend Father Declen O Toole and two other persons in Karamoja
Northern Uganda on 21st march 2002.the soldiers were publicly executed after a trial of
less than three hours before a field court martial which found them guilty of the triple
murder.

Following the execution, there was an outcry. Concern was expressed by various
persons and institutions, including Kotido diocese, mill hill fathers, and amnesty
international, primarily at the hurried nature of the trial and executions as well as the
legality of the field court martial and the death penalty.

It is clear that for a death sentence to be legal in Uganda, it must be passed by the
highest appellant court which is the supreme court as provided by article 132 (1) of the
constitution. It appears that in Hajji Nsereko’s matter, the anti-terrorism court
constituted itself as the highest appellant court which contravened with article 22(1)
and 132(1) of the 1995 constitution.

The deprivation of the right to life was again in a similar contest challenged in Uganda
Law Society v Attorney General and Jackson Karugaba v attorney general. These two
petitions were filed in the wake of the Kotido executions and the contention was that
the trial court was in violation of the rights guaranteed by the constitution under articles
22 and 28 concerning appeal. Hajji Nsereko was therefore denied the right to appeal
since the judges after four hours of deliberations sentenced him to death by firing squad
which execution was conducted in the next one hour.

The right to life as well includes a right to livelihood

In Salvatori Abuki v AG, the petitioners brought in a petition challenging the convictions
under the witchcraft act. The petitioners were banished from their homes for 10 years
after serving a prison sentence for contravention of the witch craft act. Court held that
right to life also included a right to livelihood. In Tellis and others v Bombay municipal
council (19 87) LRC (const) 351.The petitioners argued that if they were evicted from
their slums and pavement dwellings, that would violate their right to life under article
21 of the Indian constitution. They sought to argue that the right to life included a right
to livelihood. The supreme court accepted their argument and added that if they sweep
off the right life is wide and far reaching. It does not mean merely that life can only be
extinguished or taken away for example by imposition of death penalty. An equally
important facet of the right to life is the right to livelihood. The denial of hajji Nsereko
from staying in his home, which is the environment he was used to, and instead keeping
him in a safe house along Bye Bye high way and in a dark filthy room with only one meal
per day therefore as well violated his right to life.

The right to life extended to mean the right to a clean environment;

In Indian council for enviro legal actions v union of India, the petitioners brought an
action to prohibit and remedy the pollution caused by several chemical industrial plants
in Bichiri village, Udaipur district, Rajasthan. The respondents operate heavy industry
plants therefore producing chemicals such as oleum single Sulphur phosphate and
highly toxic H acid. Toxic waste water was untreated and left to be absorbed causing the
supply of water to be polluted. Several people in the nearby villages were alleged to
have contracted diseases and died. The court ordered the respondents to control and
store the sludge and later directed the closure of the factories since there activities
were a threat to lives if the public. The fact that Hajji Nsereko was locked in a dark filthy
room as well violated his right to life.
Article 27(1) of the 1995 constitution of Uganda states that no person shall be subjected
to unlawful search of the person, home, or other property of that person or unlawful
entry by others of the premises of that person. Article 27(2) of the 1995 constitution of
Uganda provides that no person shall be subjected to interference with the privacy of
that person’s home, correspondence, communication or other property.

The article secures the right to privacy of person, home and other property including
correspondence and communication. The right protects against unlawful search, entry
and interference with the privacy of an individual and his or her home. The entry and
search without warrant therefore amounts to violation of the right to privacy.

In Baguma v Uganda Revenue Authority, court defined privacy to mean a state or

condition of being alone, undisturbed or free from public attention as a matter of choice
or right. It is the freedom from interference. It strengthens human dignity and other
values.

In Kenya Human Rights commission v Communications Authority of Kenya, court

rationalized the right to privacy as follows;
Privacy is a fundamental right that supports and re enforces other rights such as
freedom of expression, information, and association. It embodies the presumption that
individuals should have an area of autonomous development, interaction, and liberty
free from arbitrary state intervention and from excessive unsolicited intervention by
other uninvited individuals.
Court also noted that the right to privacy entails that a person should have control over
his personal information and should be able to conduct his personal affairs relatively
free from unwanted intrusion.
Aspects of the right to privacy;
Article 27 of the constitution protects specifically privacy of the person, home, and
correspondence and other property.

Privacy of persons.
In the Canadian case of king v Therens, the police entered and searched the accused’s
house without a search warrant and the Canadian supreme court found that since the
police did so without reasonable cause or a search warrant, they had violated the
accused’s constitutional right to privacy. The court also found that the taking of the
accused’s fingerprints amounted to an act of violation of his right to privacy.

Right to privacy of individual home and property.

In Mukasa Victor Juliet and Yvonne Oyo v attorney general, the police entered the
petitioner’s premises without a search warrant, searched them, their property and then
undressed them. This act was held to be unlawful and a clear violation of article 27 of
the constitution. The court gave an award of three million shillings for the violation of
article 27(2) of the constitution.
In Kifampa Siraj v Attorney General, the respondent’s security personnel entered,
searched and seized several documents and properties from Nakasero mosque without
a search warrant or justifiable reason under the law. court held that the search was
illegally conducted and contravened with the provisions of article 27 of the constitution.
Therefore, the act of the ISO operatives searching hajji Senseco’s house without a
search warrant violated his right to privacy of persons, home and other property

Protection of individual correspondence.

In Kenya Human Rights Commission v Communication Authority of Kenya, the high
court of Kenya ruled that the decision by the communications authority of Kenya to
integrate a system that would give it potential access to mobile phone subscriber
information was un constitutional and invalid since it infringed on phone user’s right to
privacy.

However, the right to privacy is not an absolute right and any interference may be
justified if it can meet the constitutional test for permissible restrictions under article 43
of the constitution.

In Kenya Human Rights Commission v Communication Authority of Kenya, court noted

that a limitation of a constitutional right will be constitutionally permissible if it is
designed for a proper purpose, the measure undertaken to effectuate such limitation
are rationally connected to the fulfilment of the purpose and the measures under taken
are necessary in that there are no other alternative measures that may similarly achieve
that same purpose with a similar degree of limitation.

The parliament has as well enacted several legislations that limit the right to privacy.
Legal issue 2
Declaration
Article 50 of the constitution provides that any person who claims a particular
fundamental or other right or freedom guaranteed under this Constitution has been
infringed or threatened, is entitled to apply to a competent court for redress which may
include compensation. The petition is brought under article 137 (1), (2), (3), (4) and (7)
of the Constitution. In the case of Andrew Mwenda &anor v Attorney General
(Constitutional Petition No.12 of 2005) [2010] UGCC 5 (25 August 2010); where the
petitioners sought a declaration that section 39,40 of the penal code contradicts
provisions in the constitution under article 29(1). The constitutional struck down the
same section and declared it null and void to the extent of its being inconsistent
The family of the victim through their lawyer can petition the constitutional court
seeking declaration that the actions of the ODR security operatives were
unconstitutional and contravenes the provision of different article of the constitution
particularly article 22,23,28,44 which guarantees human right enjoyed by Ugandans.
The position of the law is very clear and the action of ODR operative of arresting hajji
senseko is invalid and the court should declare it unconstitutional and should not be
repeated on any Ugandan since is a violation of constitutionally guaranteed rights. This
principle was adopted by court while presiding over the case of HON. ZAAKE FRANCIS v
A.G MISCELLANEOUS CAUSE NO.85 OF 2020 where in Esta Nambayo issued that the
inflictionofpainpainandinjuryontheApplicantduringhisdetentionbythePoliceinfringedonis
fundamental human rights to dignity and freedom from torture and cruel,
inhuman or degrading treatment or punishment protected under Articles
20, 24, 44 (a) of the 1995 constitution.in the instant case where hajji senseko was
subjected to physical and psychological torture violated guaranteed rights under the
constitution and accordingly the action and omission of the ODR detective was
illegitimate and contrary to the provision of the constitution under article 221 which
impose a duty on the forces of Uganda to uphold and promote human right.

A writ of habeus corpus is a court order. It demands that a public official (such as
a warden) deliver an imprisoned person to the court and show good cause for their
detention. The writ allows a prisoner to challenge the legality of their confinement. This
is a non derogable right provided for under article 44(d) of the constitution which
provide for the right to an order of habeas corpus. The court should grant sesenko a writ
of habeas corpus and be produced in court with in the time frame set under the
constitution, accorded a fair and speedy hearing as provided for under article 28(1)

Damages article 23(7) is to the effect that A person unlawfully arrested, restricted or
detained by any other person or authority shall be entitled to compensation from that
other person or authority whether it is the State or an agency of the State or other
person or authority. Since the circumstances surrounding the arrest and detention of
hajji senseko constitute unlawful arrest and detention since it does not pass the test
provided for under article 23(2) and (3) which provides that A person arrested,
restricted or detained shall be kept in a place authorized by law.
(3)A person arrested, restricted or detained shall be informed immediately, in a
language that the person understands, of the reasons for the arrest, restriction or
detention and of his or her right to a lawyer of his or her choice respectively.

In Conclusion, the Constitution being the Supreme Law as provided for under Article 2(1)
demands that every operation of the agency of government must conform to the
provision of the constitution, any deviation imply abuse of the Constitution and
infringement on the human rights cause Article 1(1) provides that power belongs to the
citizen and shall be exercise in accordance with the aspiration of the people.