Turyamusiima v Attorney General & Another (Miscellaneous Application 64 of 2020) [2020] UGHCCD 230 (5 May 2020)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA (Civil Division)**

**MISC APPLICATION No 64 of 2020**

*(Arising From Misc Cause No. 77 of 2020)*

**TURYAMUSIIMA GEOFREY ========== APPLICANT**

*Versus*

**1. ATTORNEY GENERAL**

**2. DR. JANE RUTH ACENG ========== RESPONDENTS**

## **BEFORE: HON. JUSTICE MICHAEL ELUBU RULING**

This is an application filed under Article 50 (2) of **The Constitution of the Republic of Uganda**, Sections 3 (c), 4 (a) and 17 of **The Human Rights (Enforcement) Act, 2019**; Section 98 of **the Civil Procedure Act** and Order 52 Rules 1 and 3 of the **Civil Procedure Rules** S. I. 71-1.

The applicant **TURYAMUSIIMA GEOFREY** is proceeding against 1. **ATTORNEY GENERAL** and **2. DR. JANE RUTH ACENG** (1 st and 2nd respondents respectively). He seeks the following remedies:

- 1. A declaration that the failure of the 2nd Respondent (as Minister for Health) to include the services of ADVOCATES OF THE HIGH COURT among the essential services exempted under Rule 8 of Statutory Instrument No.55 of 2020 **The Public Health(Control of COVID-19) (No.2) Rules** infringes upon and/or threatens the RIGHT TO FAIR HEARING of those Ugandans arrested during the Covide-19 lockdown, contrary to Articles 28(3)(d), 43(1), (2)(c), 44(c) of the 1995 Constitution (as amended). - 2. A declaration that the failure of the 2nd Respondent (as Minister for Health) to include the services of ADVOCATES OF THE HIGH COURT among the essential services exempted under Rule 8 of Statutory Instrument No.55 of 2020

**The Public Health (Control of COVID-19) (No.2) Rules** infringes upon and/or threatens the RIGHT TO AN ORDER OF HABEAS CORPUS for the people arrested and detained without trial during the Covid-19 lockdown, contrary to Articles 23(9), 43(1), 43 (2)(b), and 44(d) of the 1995 Constitution (as amended).

- 3. A declaration that the failure of the 2nd Respondent (as Minister for Health) to include the services of ADVOCATES OF THE HIGH COURT among the essential services exempted under Rule 8 of Statutory Instrument No.55 of 2020 **The Public Health(Control of COVID-19) No.2 Rules** infringes 'upon and/or threatens the Ugandans' RIGHT 10 FREEDOM FROM TORTURE CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT during the Covide-19 lockdown Contrary to Articles 24, 43(1) and (2)(c), 44(a) of the 1995 Constitution as amended. - 4. AN ORDER does issue directing the 2nd Respondent (as Minister for Health) to include ADVOCATES OF THE HIGH COURT OF UGANDA on the list of persons exempted under Rule 8 of Statutory Instrument No.55 of 2020, to enable them offer legal services/representation to Ugandans. - 5. AN ORDER does issue directing the Minister for Works and Transport or any concerned government official to issue ADVOCATES OF THE HIGH COURT OF UGANDA with stickers to enable them drive their private motor vehicles while executing their duties as such. - 6. AN ORDER does issue against the Police, LDUs, UPDF and any other security organs of the State restraining them from stopping, arresting and/or impounding private motor vehicles of ADVOCATES OF THE HIGH COURT OF UGANDA during the Covid-19 lockdown. - 7. Any other remedy that this court may deem just and lawful in the circumstances.

The grounds on which this application is based are well enumerated in the Notice of Motion but also particularised in the affidavit of, TURYAMUSIIMA GEOFREY, the applicant. He stated that:

- 1. He is an Advocate of the High Court and all courts subordinate thereto practising with Wameli and Company Advocates and brings this application in the interest of the public of Uganda and any particular individuals whose rights mentioned are infringed upon or threatened. - 2. The 1st Respondent is the legal representative of the Government of Uganda and is liable to be sued for the acts and/or omission of officials of the Government.

- 3. The 2nd Respondent is the Minister in charge of Health in the Government of Uganda and at all material times, she purported to excise executive authority as such. - 4. As a Ugandan Citizen living in Uganda, I know for a fact that currently there exists a world pandemic known as COVID-19. - 5. As of today, 55 people in Uganda have tested positive with the disease but 28 have fully recovered and discharged leaving behind 27 who are now under management by Ministry of Health. - 6. No death as result of the Covid-19 disease has been reported in Uganda as of today, 21/04/2020. - 7. Between 18/03/2020 and 30/03/2020, the President of Ugandan made several directives with the effect of locking down all services, apart from what were termed **essential services**. - 8. On 31/03/2020, the 2nd Respondent, (as Minister for Health), made and published Statutory Instrument No. 55 of 2020, **The Public Health (Control of Covid - 19) (No. 2) Rules** to guide the country during the said lockdown. - 9. The Statutory Instrument was supposed to expire on 14/04/2020 but the Minister extended it to 5/05/2020 and the chances that she will extend it further are very high. - 10. Rule 7 of the said Statutory Instrument prohibits any person from driving any motor vehicles on any road in Ugandan during the lockdown but Rule 8 exempts motor vehicles used in providing essential services. - 11. Services of Advocates of the High Court of Uganda are not among those services exempted from the prohibition under Rule8 of the Instrument and legal representation is not among the essential services listed therein. - 12. The Minster for Roads and Transport has been mandated to issue stickers for vehicles and/or persons rendering the listed essential services of which legal services and/or Advocates providing them are not among. - 13. The Uganda Police, Local Defense Unit operatives, UPDF soldiers and other security organs of the State are implementing the said Statutory Instrument No. 55 of 2020 by stopping, arresting and impounding any and every private motor vehicles of persons who are not exempted under the Rule 8 of Instrument.

- 14. During this Covid-19 lockdown, several Ugandans are being arrested, detained and sometimes presented in courts of law without Advocates to represent them because the Advocates cannot drive to access their office or courts - 15. Several Ugandans are being arrested and detained without trial during the lockdown and yet Advocates are unable to reach them to offer the necessary legal services. - 16. Several Ugandans are being tortured, cruelly, inhumanly and degradingly treated or punished by security forces yet Advocates cannot access them and/or render them the necessary legal services during the Covid-19 lockdown. - 17. The rights of Ugandans are therefore being infringed upon and/or are threatened in the circumstances. - 18. He knows that the right to fair hearing (including a person appearing in court with his or her lawyer), the right to an order of habeas corpus and the right to freedom from torture, cruel, inhuman and degrading treatment or punishment are nonderrogable rights under the 1995 Constitution (as amended). - 19. The Instrument of the Minister has made it impossible and/or very difficult for Advocates to render legal services, including defending and promoting the above non-derrogable rights during the Covid-19 lockdown. - 20. At Wameli & Co. Advocates, two of their clients, Okello Denis and Labeja Ongom Charles who have been held incommunicado and we need to meet with their relatives to prepare and apply for orders of habeas corpus on their behalf but we are currently constrained by the effects of the said Presidential Directives. - 21. At Wameli & Co. Advocates, phone calls are received almost on a daily basis from relatives of people who have been arrested seeking legal service to appear with them in court but we are not able to move to appear with them due to the constraints created upon us by the Statutory Instrument. - 22. At Wameli & Co. Advocates, we have clients who have been tortured, cruelly, inhumanly and degradingly treated, including a one Pastor Muwanguzi Andrew, but we cannot seek redress on their behalf due to the constraints on our movements. - 23. That he verily believes that the above and several other infringements and/or threats to the rights are not acceptable or demonstrably justifiable in a free and democratic society that Ugandan is supposed to be.

- 24. He believes that the fight against the COVID-19 disease can be effectively executed without necessarily infringing upon and/or threatening the above rights. - 25. He believes that the granting the above sought remedies will not in any way affect or retard the fight against the COVID-19 disease. - 26. Prior to the said Instrument, the Honourable Chief Justice of Uganda had guided that in the bid to fight the Covid-19 disease, the courts would only work on urgent and crucial matters; including bail applications and delivering judgments. - 27. The Chief Justice also guided that a limited number judicial officers and support staff would be at the courts on roster-basis to handle the urgent and crucial cases while the others would remain at home. - 28. The Chief Justice also guided that a limited number of people would be allowed in courts, particularly the parties and their Advocates and that the measures put in place by the Ministry of Health would strictly be followed. - 29. He believes that these measures are sufficient to keep the particular Advocates and their clients safe while executing their duties. - 30. He believes that it is in the interest of the rule of law and constitutionalism that this application with the remedies sought is granted. - The 1st respondent opposes this application. - In an affidavit in reply sworn by **Dr. Henry Gatyanga Mwebesa,** who is the Director General Health Services, Ministry of Health, it is averred that: - 1. That Application is without merit, an abuse of Court process and should be dismissed with costs. - 2. That prior to the Republic of Uganda registering its 1st case of the Novel corona Virus now referred to as COVID-19, the World Health Organization (herein after referred to as "WHO") had on 11th March 2020 declared COVID-19 a pandemic. - 3. That the WHO declared COVID-19 a pandemic because it had spread to over 114 countries across all continents and had killed a number Of people in the province of Wuhan, China where it was first discovered in December 2019 and other parts of the world. - 4. That on 18th of March 2020, in a bid to curtail the spread of COVID19 pandemic, H. E the President of Uganda Issued 13 directives which included restricted public gatherings and traveling to category one countries (high risk countries). A copy of the H. E the President speech was attached to the affidavit.

- 5. That the said directives were issued to restrict mass concentration of people which according to WHO and the scientific community is a conduit for the spread of COVID- 19 pandemic. - 6. That decongesting communities is a public health intervention which stops COVID-19 pandemic from spreading within the population. - 7. That Uganda being a State party to WHO International Health Regulations, it is duty bound to implement all the recommendations of WHO in fighting a Public Health Emergency of International Concern such as the COVID - 1 9 pandemic - 8. That the interventions recommended by the WHO to States include social distancing, surveillance and contact tracing, restriction on movement and stay at home orders. - 9. That these recommendations by the WHO were considered and included in the President's directives. - 10. That on 21st March 2020, the Republic of Uganda registered its first confirmed case of COVID - 19. - 11. That H. E the President on 21st of March 2020, also issued additional directives which inter alia included prohibition of incoming passengers whether by air, land or water within a 24-hour period except for cargo transport. A copy of the additional directives were attached to the affidavit - 12. That on 30th March 2020, H. E. President issued additional directives which included a ban of all passenger and private vehicles, closure of food shops/stores, construction sites save for essential services. A copy of those additional directives, dated 30th March 2020, was attached to the affidavit. - 13. That the essential services which were exempted by H. E. the President and enacted into **the Public Health Control of COVID - 19 Regulations** S. I. 55 of 2020 include medical services, police services, UPDF services, agricultural and veterinary services, telecommunications and media services, banking services, URA services, UNRA services, UWA services, Security services, delivery services, cleaning and garbage collection, funeral services, diplomats and selected government services.

- 14. That the 2nd respondent enacted S. I. **55 of 2020 The Public Health (Control of COVID – 19) (No.2) Rules** pursuant to the powers conferred upon her by Section 11 and 27 of **the Public Health Act**, Cap 281. - 15. That on the 29th of April 2020 the confirmed number of cases of COVID-19 stood at 79, with 47 recoveries and no death in Uganda. A copy the current position of cases confirmed in Uganda was attached. - 16. That the contention by the Applicant that the lockdown rules contained in S. I. 55 of 2020 will be extended beyond the 5th day of May 2020 is merely speculative and of no probative value. - 17. That under Regulation 8 of S. I. 55 of 2020, legal practitioners are not listed under the essential services. - 18. That claims made by the applicant that Ugandans are being arrested and presented in Courts of law without representation, or that they are being detained without trial, or being tortured are merely speculative and of no probative value. - 19. That the right to legal representation is not absolute. - 20. That lawyers, despite the pandemic, are still rendering legal services representing their clients pursuant to the directions issued by the Chief Justice of Uganda. - 21. That lawyers have, irrespective of S. I. 55 of 2020, filed numerous cases in the Court. - 22. That the President in addition to several lockdown measures guided the nation that in exceptional circumstances, the RDC's were empowered to issue temporary travel permits to members of the Public that did not fall under the category of essential staff listed under regulation 8 of the SI 55 of 2020. - 23. That there are over 3500 advocates enrolled in the Country. A letter from the Ag Chief Registrar of the Courts of Judicature showing the number of Advocates is attached to the affidavit in reply. - 24. That these Advocates/Lawyers employ several support staff who include secretaries, clerks and so on. - 25. That if the orders and declarations sought are granted by this Honourable Court, it would greatly undermine the fight against COVID-19 and the social distancing requirement needed to prevent spread of the Novel Corona Virus.

- 26. That one of reasons why the current directives of H. E. the President and S. I. 55 of 2020 have had the desired effect is because of the restricted movement of persons and physical interactions and these should be maintained. - 27. That the Ministry of works on application by the Uganda Law Society issued the Legal Aid Project of Uganda Law society with stickers to support the work of Legal Aid project's work In Kampala Metropolitan Area and Moroto. A copy of the press release of this information is hereto attached.

The 2nd respondent is **Dr. Jane Ruth Aceng**, Minister of Health.

- She also opposes this application and deposed an affidavit in opposition in which she states: - 1. That she agrees with evidence from the applicant of the existence of a pandemic and the related statistics. - 2. That she is the Minister of Health in the Government of Uganda, but was sued me in her personal capacity. She put the applicant on notice that she would raise a Preliminary Objection in this regard, as the same is in contravention of Article 250 (2) of **the Constitution of the Republic of Uganda**. - 3. That claims made by the applicant that Ugandans are being arrested and presented in Courts of law without representation, or that they are being detained without trial, or being tortured hat allegations of arrests made with no access to advocates are unjustified. - 4. That the Applicant has not attached any material evidence before this Court of identifiable persons whose rights have been violated or evidence of violation of any provisions of the Constitution and as such, his claims are generalised and unsubstantiated allegations on use of excessive force and derogation of rights of Ugandans - 5. That **the Police Act** (as amended) is clear on how the arrest and detention of persons is executed in light of **The Public Health (Control of COVID 19) (No. 2) Rules**, No. 55 of 2020, but the Applicant has not demonstrated or even alleged that these laws are inadequate - 6. That there was no evidence adduced directly linking the Inspector General of Police to the violation of fundamental rights and freedoms by individual police officers

- 7. That there is no proof of the existence of the clients stipulated or of instructions given to the Applicant in regard to the matters highlighted in in the application and as such, there is no substantiation of claims set out therein. - 8. That in light of the above, the claims set out in these paragraphs have no probative value in this Court of law and should be dismissed. - 9. That under Sections 11, 28 and 29 of **the Public Health Act**, Cap 281 (PHA) she has powers to enact instruments such as the one in question herein, and these provisions set out the relevant legal framework under which all the issues raised by the Applicant have been addressed by the relevant government agencies. - 10. That the Statutory Instrument is premised on a substantive law (**PHA**) to minimize and mitigate the spread of Covid-19 and thus protect human lives, which is a legitimate constitutional responsibility of the Government of Uganda which the 2nd respondent serves, and in line with the provisions of the **PHA** and **the Police Act**, (as amended). - 11. That the rules were duly passed and conform to the legitimate procedures for doing so - 12. That the said Instrument is of itself a legal document which independently passes the test under Article 43 (2) (c) of **the Constitution of the Republic of Uganda**. - 13. And that additionally the rules and the restrictions therein mitigate the spread of the Corona Virus and prevents potential resultant deaths, and that such restrictions are proportionate and reasonable in an open and democratic society and within the constitutional mandate of the government, and therefore adhere to the principle of necessity. - 14. That the derogation of rights of any kind must be in conformity with Uganda's additional obligations under international law, and the Instrument indeed conforms to Article 4 (1) of *the International Covenant on Civil and Political Rights* (ICCPR), which guarantees that a human right can be temporarily suspended or restricted in response to a public emergency, including public health. - 15. In light of the above, the ICCPR stipulates the said non-derogable rights, and the same are as presented by the Applicant herein, and as such, the pandemic highlighted herein forms an exception to which the said rights have been derogated.

- 16. That the principles of proportionality and the respect of non-discrimination and equality have been complied with in the exclusion of certain services as being essential, and the right to establish the said exclusions were well within the powers of my Ministry. - 17. That I have been advised by my lawyers, whose advice I believe to be true, that the exceptions sought by the Applicant are not in line with the Rule of Law, and the rights derogated therein are properly done so through the said Instrument. - 18. In light of the above the 2nd Respondent prays that the application be dismissed

In her paragraph 2 (b) the 2nd Respondent put the Applicant on notice that she will raise a preliminary objection challenging the applicant bringing this action against her in her personal capacity.

At the hearing, Counsel for the 2nd Respondent submitted, on the preliminary point, that under Article 250 (2) of **the Constitution of the Republic of Uganda** where any claim is brought against the Government, it shall be the Attorney General named as the Respondent. This Constitutional position is actualized in by Section 10 of the **Government proceedings Act Cap 77.** She relied on the decision of the Supreme Court in the **BAT vs TEAN** that held a private person or organisation cannot be named as a respondent in action for the enforcement of human rights.

In this instant case the applicant seeks to proceed against the 2nd Respondent for making rules in S. I. No. 55 of 2020 **The Public Health (Control Of Covid - 19) (No.2) Rules, 2020.**

The contention is that these rules were issued by the 2nd respondent in an official capacity as Minister of Health and not in a personal capacity as Dr. Jane Ruth Aceng. There is no evidence to show that the 2nd respondent acted *ultra vires* to warrant or justify personal liability on her part.

Counsel for the 1st Respondent added that S. I. No. 55 of 2020 is signed by the Minister of Health pursuant to authority granted in Section 11 and 17 of **the Public Health Act** and not by Dr. Jane Ruth Aceng in a personal capacity**.** The parent Act is specific that it is only the Minister and not one Dr. Aceng who can enact the Rules. He added that the Minister of Health is a cabinet Minister.

The applicant opposed the preliminary objection. Counsel for the applicant argued that the 2nd respondent was sued because in enacting S. I. 55 of 2020 she exercised her executive authority in such a manner that violates the rights shown in the application. She infringed on the right of Fair Trial, The Right to an Order of Habeas Corpus and The Right to Freedom from Torture, Cruel, Inhuman and Degrading Treatment.

That in Section 10 **The Human Rights (Enforcement) Act, 2019** has the effect of making a public officer who violates rights or freedoms of a person liable. Article 250 (2) **of the Constitution** is thus not intended to give permit to public officers to disregard the law knowing they will never be made parties to proceedings. He submitted that they can only enjoy protection under this provision where they have acted lawfully.

It was the contention of Counsel for the Applicant that in the case of **Law Society of Kenya v Hillary Mutyambai and Other Constitutional Petition No 120 of 2020** the Kenyan Constitutional Court held the Minister there liable for imposing a curfew which had the effect of denying those arrested a right to legal representation. Counsel argues that this holding is persuasive and should be followed by this Court.

It is argued farther that under Article 99 of **The Constitution,** Executive Authority vests in the President and can be assigned to his cabinet ministers. It is therefore a delegated function. The person or individual assigned that responsibility is liable because the President has a duty to safeguard the Constitution and the laws of Uganda.

In the context of the present application, the 2nd respondent in making the Rules in S. I. 55 of 2020 failed to uphold the Constitution which provides for the preservation non derogation of certain fundamental rights.

This Court turn now to the resolution of this preliminary point.

On a general point, the principle is that a preliminary objection consists of a point of law which has been pleaded and which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit (See **Mukisa Biscuits vs West End Distributors [1969] E. A. 696)**. In resolving this point I am restricted to the pleadings.

It is agreed by all parties that the country, like the rest of the world, faces the debilitating doomsday threat posed by the Covid – 19 novel Corona virus. That H. E. the President has issued several guidelines on preventative measures against the spread of the virus. In his address of the 30th of March 2020, people to people movement was prohibited.

On the same day, 30th March 2020, the 2nd respondent who is the Minister of Health, acting under the powers conferred on her by Sections 11 and 27 of **the Public Health Act** made several rules including Rule 7 which stipulates,

Subject to Rule 8, with effect from 2200 hrs on the 30th of Mach, 2020, until the 14th of April 2020 no person shall drive any class of motor vehicle or engineering plant on any road in Uganda.

Rule 8 created exceptions to Rule 7 and motor vehicles that were used to provide essential services were exempt from Rule 7. The essential services are listed and include amongst several others medical services, the Police, The Uganda People's Defence Forces and so on.

Of special interest to this application services of Advocates of the High Court are excluded from the list of essential services.

It was against this background that the applicant filed this application. The complaint being that the 2nd respondent in her capacity as Minister for Health should have included Advocates of the High Court to the list of essential services to enable these advocates ensure fundamental rights of Ugandans arrested are not breached but enforced.

The question in this preliminary point is whether the 2nd respondent who is Minister for Health should be personally liable in this application?

As seen earlier, Counsel for the 2nd Respondent submitted that Article 250 (2) of **the Constitution** applied with full force in these circumstances. It states,

Civil proceedings by or against the Government shall be instituted by or against the Attorney General; ...

The **Government Proceedings Act** stipulates in Section 10 that Civil proceedings by or against the Government shall be instituted by or against the Attorney General.

It would appear by these two provisions that it is settled that civil proceedings against government cannot be commenced against an individual.

However Section 10 (1) of **The Human Rights (Enforcement) Act, 2019 states,**

A public officer who, individually or in association with others, violates or participates in the violation of a person's rights or freedoms shall be held personally liable for the violation notwithstanding the state being vicariously liable for his or her actions.

It was the contention of the applicant that Article 250 (2) of the Constitution would not be available to any public officer who violated any person's rights or freedoms and would be personally liable for his actions.

In **Charles Harry Twagira Vs Attorney General and Two Others SCCA No 4 of 2007** the Supreme Court agreed in regard to personal liability that such officer could be sued in his personal capacity if there is a possibility that he acted beyond the scope of his duties or maliciously. It is true that the **Twagira** (supra) was determined before the enactment of **The Human Rights (Enforcement) Act** but the principle would properly apply to determine liability under Section 10 (1) of **The Human Rights (Enforcement) Act**.

The applicant contends that the 2nd respondent was under a duty to uphold the Constitution. In failing to do so she became personally liable.

It is true that executive authority is vested in the President who has a duty to uphold and safeguard **the Constitution** and the laws of Uganda (see Article 99 [1] and [3] of **the Constitution**). In this regard a cabinet minister is responsible for such functions of Government the President may assign to him. The minister acts on the delegated authority of the President. It should also be noted that Ministers are individually accountable to the President for the administration of their Ministries and are collectively responsible for any decision made by the Cabinet. The Cabinet consists of the President, the Vice President and several ministers (Articles at th111 (1), 113 (3) and 117 of **the Constitution**).

In this case the 2nd respondent was appointed by the President as Minister for Health. In his address of 30th of March 2020 to the nation, whose transcript is attached to the 1 st respondent's affidavit in reply, the President stated that cabinet sat under his chairmanship and made several decisions. He announced measures that included the restriction of movement of private cars. As seen the 2nd respondent is collectively bound by policy decisions made in cabinet or decisions made on assignment from the President.

Accordingly as Minister of Health and exercising the Power the she has under Section 27 of **the Public Health Act** the Minister made rules on the same 30th of March 2020 designated **S. I. No. 55 of 2020 The Public Health (Control Of Covid - 19) (No.2) Rules.** Under Rules 7 and 8, she restricted the person to person movement using private cars except for essential services. The rules were signed by Dr Jane Ruth Aceng as Minister for Health.

I have not seen any evidence or indication that the Minister acted either maliciously or outside the scope of her mandate when she did not list Advocates of the High Court as essential services. If she had that would make her personally liable.

It is not borne out by any evidence that the 2nd respondent failed in her duty to advise that under Article 44 of the Constitution there shall be no derogation from the rights prayed for here.

Section 10 (1) of **The Human Rights (Enforcement) Act** specifically requires proof of violation or personal participation in the violation of a person's rights or freedoms by a particular public officer. In this case there is no such evidence of specific violation or participation in violation by the 2nd respondent. On account of the H. R. E. A the 2nd respondent is not personally liable.

In sum there are no circumstances to justify personal liability of the 2nd respondent in this case. The application against her is incompetent.

For these reasons the preliminary objection is upheld. The 2nd respondent is struck off the application.

The Court will now turn to consider the main application.

The applicant seeks several declarations and orders.

It is the import and purpose of his application that the exclusion of Advocates of the High Court from the list of exempted services listed in Rule 8 of **S. I. No. 55 of 2020 The Public Health (Control Of Covid - 19) (No.2) Rules** results in the infringement of fundamental human rights to Fair Hearing, to an order of Habeas corpus and finally the right to freedom from Torture, Cruel and Degrading Treatment.

It is common ground that Advocates were not listed as essential services in Rule 8. It is the position however that the Hon the Chief Justice has issued guidelines allowing Courts of law to operate to hear urgent matters. This application is indeed evidence that such urgent matters have been cause listed and heard. Although the Courts are open, the Advocates had to go through other avenues to obtain permission from the RDCs to access their clients and the courts. It is argued that this results in the infringements above. It is also the position that there have been arrests of persons. Indeed this is partly why The Hon The Chief Justice has directed that the Courts hear serious criminal cases and bail applications.

While this Court was considering this application H. E. the President issued several more directives on the 4th of May 2020. On whether the Court can take notice of these directives I am guided by a learned author who has made a commentary of the Kenyan Evidence Act. In **A Commentary on The Evidence Act** By Steve Ouma *Law Africa* (2014) pg 145 it is stated that,

All matter of general or local notoriety may be said to be facts which are beyond serious doubt, are so notorious or of such common knowledge that they require no proof and are open to no evidence in rebuttal. Courts should be alive to happenings in society because law does not operate in a vacuum and a court closed to the on goings in society cannot possibly understand the impetus behind a pleading.

I find the learned author's writing persuasive and to be an objective statement of the law.

In Uganda today, it is certainly true that the guidelines H. E. The President delivers from time to time, on preventive measures on the fight against the pandemic, are matters of local notoriety and common knowledge. They require no evidence to prove them as they are widely broadcast and circulated around the country.

In the guidelines issued on the 4th of May 2020 the President stated in guideline No 7 that

The Uganda Law Society will be allowed a quota of 30 lawyers at any one time to provide urgent legal services to the different businesses and to handle urgent criminal matters like arraignment.

I will therefore hold and find this fact that a limited number of Advocates have been allowed to represent persons in urgent criminal matters is proved.

To my mind this newly issued guideline deals with the prayers sought in this application as it enables Advocates through the Umbrella body to address concerns of clients whose fundamental rights or freedoms may be infringed.

Although **S. I No 55 of 2020** has not been amended, the newly issued guidelines ensure that a limited number of advocates shall be exempt from the restrictions it lays down.

In **Human Rights Network for Journalists and Another vs. Uganda Communications Commission, & Others HCMC No. 219 of 2013** court held that courts of law do not decide cases where no live dispute between parties is in existence. Courts do not decide cases or issue orders for academic purposes only. Court orders must have practical effects. They cannot issue orders where the issues in dispute have been removed or no longer exist

For the reason that the blanket ban on Advocates is lifted, I find that this application has been partly overtaken by events and prayers made in Paragraph 1 – 3 of the Notice of Motion rendered moot. I shall deal no farther with them.

The orders sought as stated in paragraphs 4 to 6 of the application have however not been fully addressed.

It was the submission of the applicants that they do not wish to attack the rules in S. I. 55 of 2020 in their entirety but pray for access to clients who are arrested to ensure that the fundamental rights of those clients are not infringed. They drew the Courts attention particularly to Art 44 (c) and (d) of **the Constitution**. It was also the contention for the applicant that there should be detailed Standard Operating Procedures developed to guide the specifics of access by advocates, around the entire country, to their clients.

Counsel for the respondent argues that, as shown in the affidavit in reply, deposed by Dr Mwebesa, the President in addition to several lockdown measures guided the nation that in exceptional circumstances, the RDC's were empowered to issue temporary travel permits to members of the Public that did not fall under the category of essential staff listed under regulation 8 of the SI 55 of 2020. Counsel submitted that there are therefore mechanisms in place to ensure representation of clients making this application superfluous.

Article 44 (a),(c) and (d) of **the Constitution** provide as follows:

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—

- (c) the right to fair hearing; - (d) the right to an order of habeas corpus.

## It was held by the Constitutional Court in **Constitutional Petition No 18/2005 THE UGANDA LAW SOCIETY V. THE ATTORNEY GENERAL** that,

"A constitution and in particular that part of it which protects and entrenches the fundamental rights and freedoms to which all persons in the State are to be entitled to be given generous and purposeful Construction."

The most generous and purposive construction of this provision is that the framers aimed to ensure that the freedoms under Article 44 are inalienable whatever the circumstances.

Against that background, this Court takes the following into consideration: that there is a worldwide pandemic of doomsday proportions afflicting the globe; that the danger is posed by threat of infection by the novel Corona virus; that it is necessary to impose restrictions on people to people contact in a bid to curtail the spread of the virus; that restrictions on movement were placed on persons across the country as highlighted in all the pleadings here.

That the Court has noted farther that restrictions have been partly lifted against advocates as stated in guideline 7 of the President's address of 4th May 2020, albeit in a limited manner; that, as submitted by Counsel for the Respondent, there are measures in place to allow for movement of persons in exceptional circumstances; that the directives of The Honourable the Chief Justice are that Courts shall continue to take plea for serious cases and handle bail applications; the submission of Counsel for the applicants is that Standard Operating Procedures as to how they can be availed permission to access their clients be developed.

The Court takes cognisance of the inalienable and non-derogable nature of the rights in Article 44 of the Constitution.

Having considered all the foregoing and specific to the prayers sought in this application the Court takes particular note of H. E. the President's guideline No. 7 of 4 th May 2020 partially lifting the ban on advocates to handle urgent criminal matters like arraignment.

It is noted, as submitted by Counsel for the respondent, that there was also an earlier guideline providing for temporary travel permits in exceptional circumstances, which may be utilized by Advocates seeking to enforce the fundamental rights of their clients.

The Court was also enjoined by the applicants to grant any remedy that may seem just and lawful in the circumstances.

Taking all the above into account, it is now directed by the Court that the respondent provide detailed modalities stating what mechanisms, in deserving cases, Advocates may utilise for access to clients, to guarantee that the right to a fair hearing; and the right to an order of habeas corpus (as stated under Article 44 of the Constitution) is preserved.

**..................................................**

**Michael Elubu**

**Judge**

**5.5.2020**