Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up

18 September 2020 · Carmel Rickard

An increasingly contentious figure in Uganda, retired military general Henry Tumukunde, has just tried – and failed – to invoke judicial help against persistent police action targeted at him. Tumukunde, a once close ally of Uganda’s President Yoweri Museveni, plans to contest the presidential position in next year’s elections. But during the run-up to the elections, he has become a person of considerable interest to the police and the army, and he has been arrested several times. His latest court action was for a temporary interdict to prevent the police from arresting him and violating his constitutional rights.

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For some years, a now-retired Ugandan military officer, Henry Tumukunde, has featured repeatedly in the news and in court judgments.

Last week he has back in court, this time in the high court’s civil division, asking for protection against the police via the attorney general. In an urgent application under the Human Rights Enforcement Act, he asked for a temporary interdict restraining the AG and the police from arresting or otherwise violating his rights, pending the outcome of his main application.

Tumukunde, 61, says that he retired as a soldier in 2015. Now he is standing in the 2021 general elections as a presidential candidate. He has submitted the necessary papers to the electoral commission and is now involved in country-wide consultations and canvassing prior to the elections.

Meetings

Last month he was arrested and held by the police for eight hours. His lawyer was sent a summons from the police. The summons claimed he was holding meetings with army veterans and discussing ‘issues related to politics’. When his lawyer had a meeting at the AG’s office for an explanation of the summons, they found top officers of the Army Court Martial present.

In his affidavit, Tumukunde questioned the presence of the court martial officers, saying he is now a civilian and not connected to the military or the police. There were other Ugandan political groups that had involved veterans in their organisations, he said, but they were not summoned by the AG or the police.

Even the ruling party provided for the involvement of military veterans in its political activities, and the constitution allowed for it. On these grounds he therefore asked that the police and army be ordered not to undermine his constitutional rights by arresting or detaining him.

Disrupt

The court heard from the acting inspector general of police, Grace Akullo, that many intelligence reports showed Tumukunde was ‘engaging and meeting’ army veterans ‘and discussing ways in which to disrupt the ongoing electoral process in Uganda’.

An inquiry was ordered into ‘these matters’, and Tumukunde was ‘summoned for an interview’. On the due day only his lawyer arrived and said that Tumukunde was unwell. They set another day for Tumukunde to be ‘interviewed’, but on the appointed day Tumukunde’s legal team arrived at the headquarters of the police criminal investigations directorate, again without their client, and delivered a letter. This letter expressed concern about the police summons. It said that the police action against their client disrupted his programme of pre-election meetings and that the electoral commission had been informed of this.

During brief argument, counsel for Tumukunde said a temporary order was in the interests of justice since the police were acting against their client even though there was no real case.

Caution

Judge Ssekaana Musa, who dealt with the matter, said a court would treat with ‘caution and circumspection’ any application for the grant of a temporary injunction against public authorities.

Courts would be slow to grant such an injunction, and when there was a conflict of interest between the interests of a few individuals and that of the wider public, then ‘the interest of the public at large must prevail over the interest of a few individuals’.

In this case, said the judge, Tumukunde wanted to stop the police ‘from doing what the constitution enjoins them to do’. The police were given power by the constitution in the public interest to protect life and property, preserve law and order and prevent and detect crime.

Core functions

What Tumukunde asked was for the police to be stopped from investigating crime, even though this was one of their core functions. Tumukunde would have to satisfy the court by leading evidence that on the face of it, he had a case. He had however not given the court any evidence to support his application for an injunction. ‘He has only stated that he does not know why he is summoned and that he is a civilian who is not subject to or connected to (the military)’.

The most interesting paragraph of the judgment was this: ‘The court should always be willing to extend its hand to protect a citizen who is being wronged or is being deprived of property without any authority of law or without following procedures …. But at the same time, judicial proceedings cannot be used to protect or perpetuate a wrong committed or threatened to be committed by a person who approaches the court.’

The judge concluded that the application failed and should be dismissed with costs.

Covid-19

In mid-August, police said that their arrest of Tumukunde was because he was meeting with supporters without observing the Covid-19 guidelines.

After his release on that occasion he said whoever was behind his ‘continuous arrests’ should know that the arrests would not make him lose hope about bringing change to the government of Uganda.

Tumukunde was arrested at the first of seven meetings he had organised. One of his legal team said that though all the guidelines had been observed in the rmeetings, the police still arrested him.

Rwanda

Earlier this year, his offices were raided. He was arrested and charged with treason. At that stage, it was said that a comment he made on radio led to the charges. He had said, ‘If I was Rwanda, I would wish to support people who want to cause change in Uganda.’ According to Aljazeera, relations between Uganda and Rwanda have been strained for some time as the two countries accuse each other of supporting each other’s dissidents.

According to a police statement, Tumukunde, had been enlisting ‘the support of a neighbouring country to support him in removing the current leadership’. In the view of Aljazeera, this reference is to Rwanda.

Carmel Rickard

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