Background of the cases

i. ibingira and Others v. Uganda (1966) EA 305 (No.1)

The case No. 1 dealt with the legality of the Deportation Ord., Cap. 46 for being inconsistent
with the 1962 Constitution since s. 19(1) (j) provided that: ‘No person shall be deprived of his
liberty save as may be necessary in the execution of lawful orders.
The applicants had been held in custody pending a decision by the Minister concerned as to
whether deportation order should be made against them under the DO. On application for a writ
of habeas corpus their detention was challenged on grounds of inconsistency with the
constitution.
The High Court dismissed the application arguing that the Ord. fell squarely within s.19(1) (j)
and that it did not infringe any other relevant provisions of the constitution.
On appeal to the EACA, applicant’s counsel argued that the HC had erred in looking at s.19 to
the exclusion of s.28 (dealing with protected persons). That s. 1 9 pre-supposed a lawful order
which was not the case unless Art. 28 was complied with. The State Attorney argued that by
virtue of s.19, the Ord. was ‘authorized by law’ because it was made by a statutory power.
That the lawful orders authorized by s.19(1) in paras (a)—(d) related to judicial proceedings
while paras (e)-(j) related to administrative actions, and it did not specify the manner in which
the liberty of the individual may be restricted or taken away. The argument on behalf of the state
ultimately rested on the proposition that s.19 authorized legislation for the restriction of
movement and residence of the individual. In the view of the EACA, this was not so, and it held
that all para (j) of s.19(1) did was to provide that lawful orders made under statute restricting
freedom of movement (s. 22) shall not constitute violations of the right to personal liberty (s. 19).
Invariably, the question before the court was whether the Deportation Order was inconsistent
with the provisions of the 1962 constitution with respect to the fundamental rights and freedoms
of the individual.
It should be noted that the appellants were held in custody pending the Min’s decision whether
an order for deportation should be made. Whatever that decision might eventually be, the
appellants could properly be held in custody if a valid order was capable of being made. If
however the Deportation Order was void for inconsistency and consequently a valid order could
not be made under it, then clearly, the detention while (he exercise of a non- extent power was
being considered would be unlawful. The proper section of the constitution was clearly s. 25 and

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as the Deportation Order as it stood did not fall within any paras. of the section at last in so far as
purported to affect citizens of Uganda, it controversial the section and was in violation of the
freedom of movement.
The Court held therefore that no lawful order could be made against a citizen of Uganda under
the order., and since any order that might be made be unlawful, para. U) of s. 19 (1) ou1d have
no application The appeal was allowed, and the proceedings were remitted to the I IC to order
the release of the appellants.
ii. ibingira and Others v. Uganda (1966) EA 445 (No.2)
This second case (No. 2) came in the wake of the decision of the EACA in No. I to allow a writ
of habeas corpus to the applicants, and direction to the HC to order their release. The 5
applicants (ministers and citizens of Uganda) were transported from Karamoja, where they had
been detained to be produced before the HC.
Upon their arrival at Entebbe, the PS. Ministry of Internal Affairs informed them that they were
free by Virtue of court orders, but on leaving the airport they were issued with detention orders
under the Emergency Powers (Detention) Regs., (65/1966) which applied only within Buganda.
The applications brought in form of summons Supported by affidavits and numbered as
Misc.Crim. Appis, and made on their behalf to the HC claimed that the further detention was
unlawful and that the Regs. were ultra vires the Emergency Powers Act (8/63) and art. 30(5) of
the 1966 Constitution.
The summons was dismissed by the judge holding that the government had not acted in bad faith
in bringing the appellants to Entebbe and releasing them (before taking them before the court).
Further, the judge held that it was irrelevant (whether the appellants had been illegally arrested
and brought into Buganda (where a state of emergency had been declared).
The appellants appealed on grounds that the judge had erred in not holding that the appellants
were brought to Entebbe in bad faith. That in any event, it ‘as not open, having regard to the
orders of the EACA ordering their immediate release, for the government to bring them from
wherever they were against their will into Buganda and validly detain them.
The Court held:
- The appellants were already in detention when arrangements were made for them to be brought
to Buganda and the arrangements were made not with the object of creating a reason for further

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detention but with the object of complying with what was properly assumed to be the order of
court
Implications and Significance of the Ibingira decisions.

The Ibingira decisions hold significant importance in Uganda's constitutionalism, particularly in

the context of individual rights and liberties. These decisions were instrumental in shaping the
country's constitutional framework, which was rewritten in 1995.

The cases were decided in the teeth of the 1966 crisis and illustrated a number of dimensions of
the crisis as well as reactions to it. At the time of their initial arrest, the 1962 constitution was
still in force, and the first case was a challenge of their custody pending deportation as in
contravention of the 1962 constitution. The EACA upheld the assertion on unlawfulness of the
detentions as being in violation of the right to personal liberty and freedom of movement.1

The decision in the first case led to the outrage of the state with the AG Binaisa arguing that no
dignified court of law could have made such a decision. Peeling bound by the decision, the
government nonetheless brought them from their places of custody into Buganda, set them free
only to serve them with fresh detention orders signed by the MIA made under the recently passed
Emergency Powers (Detention) which applied only to Buganda. They were whisked off to a
ranch in the lake where they would spend five years in detention.

The government did not stop at this as it went on to pass the Deportation Validation Act (within
the space of 24 hours). The Act specified that the 5 detainees were not to be compensated the
legal costs to be paid by the government to the detainees for any action that they had brought or
might bring against the government for their illegal detention, notwithstanding any order to the
contrary by the court.

The other words, the government was basically through leg nullifying and effectively reversed
the decision of court. The challenge of their second detention in the second case, and the
summary dismissal of their application by the EACA represents one of the worst and obnoxious
decisions of the court as:-

1
J.Oloka Onyanga,Political Question Doctrine in Uganda(Makerere,2017)p.8

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 (i) there was no reference madeto any other constitutional provisions (1962 or 1966) as
to the legality of the detention
(ii) there was apparent wholesome acceptance of the va1idity of the emergency
POWERS (Detention) regs;
(iii) (iii) there was no attempt to address/question the Deportation Validation Act as a
direct assault on the judiciary ( independence).

At the end of 1966, the second case represented the genesis of the under mining the judiciary and
marked the seal of the executive omnipotence over judicial power.

The Ibingira cases, which involved prominent Ugandan politician Mathias Ngobi and the
subsequent legal proceedings, shed light on the state of judicial independence in Uganda during
that period. The cases raised concerns about the potential influence of political authorities on the
judiciary. This is enshrined under Article 128 of the 1995 Constitution of Uganda.2

The judiciary's handling of the Ibingira cases was seen as a test of its independence. However,
the perception of judicial independence was marred by allegations of political interference and
manipulation of the legal process. 3 This raised doubts about the judiciary's ability to operate
autonomously and impartially.

The Ibingira cases highlighted the challenges faced by the judiciary in upholding its
independence in the face of political pressures. The outcome of these cases and the surrounding
controversies had a significant impact on public confidence in the judiciary and its perceived
ability to dispense justice without external influence.

Protection of Human Rights: These decisions emphasized the protection of human rights,
including freedom of speech, assembly, and association. This is seen in the case of Mukasa and

Oyo v. Attorney General4, where court held that the applicants’ rights to human dignity and
protection from inhuman treatment, personal liberty and privacy of the person, home and
property had been violated .

2
Uganda Law Society v Attorney General Constitutional Petition no.52 of 2017.
3
G W Kanyeihamba, Constitution and Political History of Uganda.From 1894 to Present. Second Edition.Law Africa
Publishing Limited,2010 at page 265 to 266.
4
High Court of Uganda at Kampala (22 December 2008)

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In conclusion, the Ibingira decisions significantly contributed to Uganda's constitutional
development, reinforcing principles of separation of powers 5, judicial review, and human rights
protection. The decisions of the above cases continue to shape the country's constitutional
landscape

References
5
Attorney General v. David Tinyefuza, Constitutional Appeal No 1 of 1997

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Statute
The 1995 Constitution of Uganda
Case Law
Attorney General v. David Tinyefuza, Constitutional Appeal No 1 of 1997
Grace Ibingira and Others v. Uganda (1966) EA 305 (No.1)

Grace Ibingira and Others v. Uganda (1966) EA 445 (No.2)

Uganda Law Society v Attorney General Constitutional Petition no.52 of 2017

Mukasa and Oyo v. Attorney General High Court of Uganda at Kampala (22 December 2008)
Authored Books
Kanyeihamba, G W Constitution and Political History of Uganda.From 1894 to Present. Second
Edition.Law Africa Publishing Limited,2010
Onyanga, J.Oloka ,Political Question Doctrine in Uganda.Makerere,2017.