In the case of Abbey Musinguzi T/A Abtex Production V the Inspector General of PoliceAttorney General Miscellaneous Cause No. No. 147 Of 2019

Delivered by; Hon. Lady Justice Esta Nambayo on 13th May 2020

Towards the festive season of the Easter period of 2019, the applicants entered into an understanding with Hon. Kagulanyi Robert Sentamu alias Bobi Wine to organize musical concerts at one Love beach Baseball, Lira, Gulu and Arua under the appellation of ‘Kyalenga Extra Concerts’. On the 25th March 2019, the Applicants wrote to the Inspector General of Police of Uganda requesting for security clearance during the concerts. The IGP wrote back setting the terms for the Applicants to fulfil before their concerts could be cleared for safety. The Applicants fulfilled all the conditions set by the Police and upon notifying the IGP; they were directed by letter dated 19th April 2019 from the IGP to suspend and/or stop all concerts immediately. On 22nd April 2019, Police blocked the applicants together with Bobi Wine from accessing the venue of the concert at the One Love Beach where they had arranged for a press conference to explain why the concert had been cancelled. They were arrested and driven at breakneck speed to the residence of Bobi Wine at Magere – Gayaza in Wakiso District. The Respondent’s alleged that the applicants failed to comply with the directives that were given to them on previous concerts and had no option but to stop the concert.

The applicants sought a declaration that the process leading to the decision of the A/IGP was illegal, ultra-vires, irrational, unreasonable and an abuse of the 1st Respondent’s powers;

Court cited the case of Pastoli vs Kabale District Local Government Council and Others [2008] 2 EA 300 and stated that to succeed in an application for judicial review, an Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

From the evidence on record, The A/IGP communicated the requirements that the Applicants were to fulfil. The Applicants informed Court that they duly complied with all the requirements. They worked with the DPC Katwe Police Station who gave them an officer to work with. A/IGP acted outside the law, and therefore his actions were ultra vires hence illegality.

Court defined irrationality as when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. In this case, the Police’s action of restraining the Applicants from accessing the venue to hold a press conference to explain why the concerts were not going to take place, bundling them on the Police vehicles, driving them at breakneck speed to Bobi Wine’s residence at Magere in Gayaza and abandoning them there well knowing that Bobi Wine’s residence is not one of the known official detention facilities in the Country and without even giving reasons for the arrest or taking statements from them regarding their arrest, was in bad faith. It would appear that the decision-maker had taken leave of his senses.

In the case of Commissioner of Land v Kunste Hotel Ltd [1995-1998] 1 EA (CAK), Court noted that the purpose of Judicial review is to ensure that an individual is given fair treatment by an authority to which he is being subjected. The Police did not accord the applicants with fair treatment.

Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of making a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. The other issues were found to be matters that are to be interpreted by the Constitutional Court and therefore, failed in the High Court.