Birungi Thomas v Attorney General (Complaint UHRC 13 of 2014) [2019] UGHRC 3 (28 October 2019)


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT HOIMA COMPLAINT NO: UHRC/HMA/13/2014

BIRUNGI THOMAS:::::::::::::::::::::::::::::::::::: $-AND-$ ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

### DECISION

## *[Before: Commissioner Meddie B. Mulumba]*

Birungi Thomas (the Complainant) a resident of Katikegeye Village, Mpeefu Parish, Bwikara Sub County, Kibaale District alleges that he was arrested on $5/03/2014$ and detained at Kisita Police Post on allegations of defilement. That he was detained at Kisita Police Post for 2 days and thereafter transferred to Kibaale Police Station where he was further detained until $20/03/2014$ when he was produced before Court and remanded to Kibaale Government Prison.

This matter came up for $1^{st}$ time hearing before Commissioner framed for The following issues were Stephen Basaliza. determination:-

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- I. Whether the Complainant's right to personal liberty was violated by the Respondent's agents? - II. Whether the Respondent is vicariously liable?

III. Whether there are any remedies available to the Complainant?

Examination in chief was carried on the Complainant. The matter was thereafter adjourned to enable the parties explore amicable settlement. The matter came up again on $19/06/2018$ for update on amicable settlement. The matter was then reallocated to me for further hearing. When the matter came up for defence case on 11/06/2019, State Attorney Ebila Hillary Nathan did not call witnesses but prayed to file written submissions in defence which have not been filed todate.

Having laid out how the matter proceeded at Tribunal, I will handle the Issues raised concurrently.

Before I resolve the issues raised, I wish to note that the Complainant bears the burden to prove his case on a balance of probabilities. See <u>Sections 101 - 103 of the Evidence Act Cap 6;</u> Christine Nakamu & 2 Others vs Kyabongole Farmers Company Limited HCCS 1002 of 2004.

In regards to Issue I, the Complainant's testimony is that at on $05/03/2014$ he was arrested on allegations of defilement. Upon arrest he was taken to Kisita Police post and detained for 2 days. He was later transferred to Kakumiro Police Station where he was further detained for 1 day and later transferred to Kibaale Police Station. He was detained at Kibaale Police Station from $8/03/2014$ until $20/03/2014$ when he was produced before Court.

The Complainant tendered in the certified copy of the Lock up Kakumiro Police Station Exhibit $\mathbf{I}$ Exhibit I register from indicates that he was detained on $07/03/2014$ on allegations of aggravated defilement vide Serial 1014 CRB $09/14$ until No $10/03/2014$ when he was transferred to Kibaale Police Station. Exhibit II which is a certified copy of the Lock Up Register from Kibaale Police Station indicates that the Complainant was detained from vide Serial No 210 CRB KIS CRB 509/14 from $10/\mathrm{03}/\mathrm{2014}$ until $20/03/2014$ when he was taken to Court.

The right to personal liberty is guaranteed under Article $23(4)$ (b) of the Constitution of the Republic of Uganda 1995, "the Constitution", which provides that a person who is arrested or detained on suspicion of having committed or about to commit an offence under the laws of Uganda, shall if not earlier released, be brought to Court as soon as possible but in any case not later than forty eight hours from the time of his or her arrest. The

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same legal requirement is specifically and explicitly stated in Section 25(1) of the Police Act Cap 303 [see also the African Charter on Human and Peoples' Rights Article 6, The Universal Declaration of Human Rights 1948 Article 6; the International *Covenant on Civil and Political Rights 1966 Article 9].*

The Complainant alleges that he detained at Kisita Police post for 2 days. No evidence was adduced before the Tribunal to corroborate his detention at Kisita Police Post. From Exhibits I and II, the Complainant was in Police custody from $7/03/2014$ until $20/04/2014$ which is a period of 13 days when the 2 lawful days permissible under Article 23 (4) of the Constitution of the Republic of Uganda 1995 are deducted 11 unlawful days of detention remain.

deprivation of personal liberty outside the prescribed Anv instances under Article $23$ (4) of the Constitution results in a violation of the right to personal liberty (Iwolit Dismass and Attorney General UHRC/J/54/2003; Tusiimwe Bruce and Attorney General UHRC/FP/25/2005; Byaruhanga Charles and Attorney General UHRC/09/2007; Mbusa Wilson and Attorney General UHRC/F/151/2003; Uganda vs Robert Sekabira & 10 Others High Court Criminal Case 85 of 2010). In the instance case the Complainant was in unlawful detention for 11 days therefore his right to personal liberty as protected under Article 23 $(4)$ (b) of the Constitution was infringed upon by the Respondent's agents for 11 days.

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#### I therefore hold Issue I in the affirmative.

After considering the Complainant's evidence and having held Issue 1 in the affirmative, I have no doubt that the Complainant was arrested and detained by Respondent's agents in the course of their employment. The arrest and detention is not denied. I have no hesitation in concluding that all this was done by the agents of the Respondent in course of their employment. I therefore find that the Attorney General is vicariously liable for the acts and omissions of its servants (see Omonyi Rogers and Attorney General & Uganda Revenue Authority HCCS 27 of 2002).

#### I therefore hold Issue II in the affirmative.

Having held Issues I and II in the affirmative, I find that the Complainant is entitled to compensation (see Article 53 $(2)$ $(b)$ and (c) of the Constitution; James Okello & Cissy Okello and Attorney General UHRC/49/2003; Nsereko and Attorney General UHRC /112/1999; Murumba Thedius and Attorney General UHRC/258/2003). Accordingly, the only question left is on determining what quantum of damages he is entitled to. In the instant case the Complainant was in illegal detention for 11 days before he was taken to Court. I deem a figure of UGX 2,200,000/= (Uganda Shillings two million two hundred thousand only) as general damages for the violation of

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his right to personal liberty as protected under Article 23 (4) (b) of the Constitution of the Republic of Uganda 1995.

#### **ORDERS**

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1. The complaint is allowed.

- 2. The Respondent is ordered to pay to the Complainant a sum of UGX 2, 200, 000/= (Uganda Shillings two million two hundred thousand only) as compensation for the violation of his right to personal liberty as protected under Article 23 $(4)$ (b) of the Constitution. - 3. The said sum shall carry interest at 10% per annum calculated from the date of the decision until payment in full.

Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within 30 days from the date hereof.

I so order.

$\cdots$ day of $\cdots$ Dated at HOIMA this 2019.

MEDDIE B. MULUMBA PRESIDING COMMISSIONER

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