Businge v Attorney General (Complaint UHRC 10 of 2014) [2022] UGHRC 16 (20 January 2022)

Full Case Text

### **THE REPUBLIC OF UGANDA**

### **THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

### **HOLDEN AT FORTPORTAL**

# **COMPLAINT NO: UHRC/FPT/010/2014**

**BUSINGE ADOLF ::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**AND**

**ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO**

#### **DECISION**

The Complainant (C), Businge Adolf alleges that on 1st November 2013 he was arrested on allegations of threatening violence and was taken to the bus park police post in Kabarole District. That upon reaching the said police post he was beaten all over his body by a police officer using sticks for almost one hour. C further alleges that he was detained in the police cell from 1st November 2013 to 6th November 2013 and later transferred to Fort portal Police Station where he was further detained till 8th November 2013 when he was produced before court.

C therefore prayed to the Tribunal to order the Respondent (R) to pay him compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment and his right to personal liberty by State Agents.

R who was represented by counsel (RC's) namely Ms. Tusiime Anne who denied liability and opted for putting up a defense in the matter.

## **Issues to be resolved by the Tribunal are:-**

1. Whether C's right to personal liberty was violated by State Agents.

- 2. Whether R (Attorney General) is liable. - 3. Whether C is entitled to any remedies.

However, before I determine the above-mentioned issues it is pertinent for me to note that, that this matter was heard by my colleague Hon. Commissioner Katebalirwe Amooti Wa Irumba and it is from his record of proceedings that I have arrived at this decision.

Before I consider and determine the aforementioned issues, I wish to briefly give a background of the hearings leading to this decision. At the first hearing held on 15th May 2017, C was present. R was represented by Ms. Tusiime Ann in personal conduct ofthe matter. Both parties agreed to the brieffacts and framed issues. C had one witness Mugenyi Lucas. Both witnesses were examined, cross examined and reexamined accordingly. The expert witness who authored the medical documents could not be found and the original copies were also not available. CC prayed for an adjournment in order to allow be witness be contacted. The matter was adjourned to the next hearing.

The matter came up for further hearing on 22nd August 2017. RC Betty Karungi was holding brief for Counsel Tusiime Ann. The matter was coming for examination of the expert witness and tendering in of original medical documents. However CC informed tribunal that the original documents in possession of the complainant could not be traced and the medical expert before the tribunal was not the author nor the one who certified the copies of the medical documents. Counsel prayed for an adjournment to enable him summon the author of the documents and have the copies certified which adjournment was granted.

At the next hearing held on 23rd October 2017, CW2, ASP Makau Simon from Prison services and the author of document *ID 1* gave evidence but was nt cross examined. At the same hearing the expert witness Dr. Manzi Godwin informed tribunal that the author of the medical document was no longer working with them but testified that he could recognize the signature and knew the author on

a personal level. RC objected to the testimony by the expert witness citing that he had no mandate to testify to a document he did not author and prayed tribunal to grant more time to the facility to look for the author and have him come and testify as to the contents of the document. That prayer was granted by the tribunal and hence adjourned for that purpose.

On 7th May 2018, CC submitted that there was need to rectify C's names as the national identity card bore the names of Businge Adolf. He also submitted that since the allegation of torture bore no medical evidence, the allegation should be withdrawn and maintain personal liberty. He submitted that they would prepare a proposal to have the matter settled amicably. Tribunal ruled that the allegation of torture was withdrawn due to insufficient evidence and the allegation of personal liberty maintained. The matter was adjourned for amicable settlement.

At the next hearing held on 5th March 2019, C's statutory declaration was admitted in evidence for clarity of the complainant's name as Businge Adolf. At that point the complainant's case was closed and adjourned for amicable settlement. At the next hearing held on 7th May 2010, the matter was coming up for a brief on amicable settlement. But since C prosed an exorbitant figure amounting to Ugx 150,000,000, CC prayed that the matter be heard on its merits and have the respondent put in a defense. The respondent submitted that they would file submissions since the matter is straight forward with a copy of the lockup register on file. Tribunal allowed and granted them one month with in which to file submissions. It is now coming to two years and such submissions have never been filed. It is therefore in the interest of naturaljustice and against this background that this decision is delivered.

The fact that the Respondent has not produced any witnesses nor filed submissions does not in any way take away the Complainant's duty to prove his case on a balance of probabilities.

Accordingly, as required under Sections 101(1) and 102 of the Evidence Act Cap 6, and the case of **Jovelyne Barugahare V Attorney General SCCA No. 28/1993,** it was the duty of the C to prove his case against R on a balance of probabilities.

Let me now resolve the aforementioned issues raised above before the Tribunal.

# **Issue 1: Whether C's right to personal liberty was violated by State Agents.**

C testified that on 1st November 2013, while at Ruhandika street walking to Kisenyi at 8:00pm on his way to see someone, he was arrested on allegations of threatening violence and was taken to the Bus Park Police Post in Kabarole District. That he was put in the police cells and there were four policemen but he did not know their ranks and names. That in the cell, he found Lucas Mugenyi and others he did not recognize. He further stated that he was in the cell for three days. That he was later transferred to Boma Police station. That he spent four days at bus park police post. Upon cross examination, C stated that he spent 4 days at Boma Police station and went to court. That the court was grade 11 magistrates court.

**CW1,** Mugenyi Lucas testified that on 18th November 2013, while a detainee at Kisenyi Police post on charges oftheft, at around 8:00pm he saw C being brought in at the station.

**CW2,** ASP Makau Simon the Deputy Officer in Charge of Fort portal Main Prison testified that he is the author of the document *(letterfrom Fort portal main prison marked l. D 1)* and that it bears his signature. But the handwriting is not his thought he owns it. It has his stamp. He testified that Businge Adurufu was admitted on 8th November 2013 and charged with the offence of threatening violence vide CRB/013/6/2013. That on the date of admission 8/nov/2013. The document was signed by the OC Fort portal Prison and stamped. It was admitted as part of c's evidence.

The lockup register of Bus Park Police Post was also tendered in as part of the complainant's evidence and admitted as such and marked as *exhibit1.* It indicates that the complainant Businge 'Adurufu' No. 844/13 was booked in on 1st Nov 2013, up to 6th November 2013 when he was transferred to central police station. The lock up register for Fort portal police station could not be obtained. However given that the prison letter indicates that he was taken there on 8th Nov 2013, then he spent two days at the Fort portal Police Station and was produced in court hence the remand at Fort portal Main Prison on 8th November, 2013

The certified copy of the lockup register was admitted with the consent of RC as the Complainant's Exhibit 1.

The right to personal liberty is guaranteed under several legal frameworks such at the International, Regional and National framework. For instance, Article 3 of the Universal Declaration of Human Rights (UDHR) 1948 provides that everyone has a right to personal liberty.

Article 9(1) of the International Covenant on Civil and Political Rights (1966) also provides that everyone has the right to liberty and security of person, adding that;

No one shall be subjected to arbitrary arrest or detention.

Article 9 (3) of the above Convention further provides that:

Everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release.

On the regional level, the African Charter on Human and Peoples' Rights under Article 6 also stipulates that:

> Every individual shall have the right to liberty and to the security of person. That no one may be deprived of his

The certified copy of the lockup register was admitted with the consent of RC as the Complainant's Exhibit 1.

Article 9(1) of the International Covenant on Civil and Political Rights (1966) also provides that everyone has the right to liberty and security of person, adding that;

No one shall be subjected to arbitrary arrest or detention.

Article 9 (3) of the above Convention further provides that:

Everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release.

On the regional level, the African Charter on Human and Peoples' Rights under Article 6 also stipulates that:

> Every individual shall have the right to liberty and to the security of person. That no one may be deprived of his freedom except for reasons and conditions previously laid down by the law.

Although the above provisions do not provide the circumstances under which a person's personal liberty may be restricted, the 1995 Uganda Constitution adopted the afore cited provisions and in the spirit of ensuring that this right is not abused, expressly provided for circumstances under which such an individual's freedom may be restricted. Article 23 guarantees the right to personal liberty and its Clause 1 specifically provides for circumstances under which a person may be deprived of his or her right to personal liberty. These circumstances include; detention for the purpose of bringing that person before a court of law in execution of the order of a court, or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

In addition, Clause 4 (a) and (b) ofthe aforecited Article specifically provides that:

A person arrested or detained for the purpose of bringing him or her before a court in execution of an order of court or upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall if not earlier on released, be brought to court as soon as possible but in any case not later than 48 hours from the time of his arrest.

Therefore, in my consideration of C's allegation regarding the violation of her right to personal liberty, I have sought to establish whether C was actually arrested and detained by the aforementioned State agents, whether the detention was in accordance with the exceptions provided under Article 23(1) (a-h), and whether the requirement to produce C before court not later than 48 hours was complied with.

In **STEPHEN ERAU AND ORYEM D/ASP AND 3 OTHERS; UHHR [2002]35,** it was held that:

> *"Any arrest and detention contrary to the circumstance outlined under Article 23(1) of the Constitution is a violation ofthe right to personal liberty".*

I am also cognizant of the fact that the duty to prove that the detention was lawful lies on R. On the other hand, my view is that once it is proved by C that he was detained and his right breached, that would be sufficient for the Tribunal to discharge the burden of proof from C. For instance in the case of **SAFATI KIWANUKA VS KAMULI DISTRICT ADMINISTRATION, (1994-95) HCB 74,** Justice Kato held that:

> *"Once the Plaintiff has proved the fact of his arrest, it is up to the defendant to prove that the arrest was lawful".*

The evidence that was adduced by C and CW2 clearly indicate that C was produced in court after six days in unlawful detention. The evidence is corroborated by the lockup register marked *Exbl* and the letter from prison marked as I. D 1 that was admitted as part of the complainant's evidence at tribunal having been interpreted by its author.

It is however notable that during the hearing R's side prayed to the Tribunal that the matter be settled amicably with C because he did not have a witness to present to defend the complaint. In response to this prayer, C made a settlement proposal to R in writing of Ug. Shs. 150,000,000/=( One Hundred Fifty Million Uganda shillings only) dated 11th May 2018 citing loss of income due to detention. CC submitted that such a proposal was outrageous and prayed to hear the matter on its merit This proposal was however unfruitful and in the long run, when the matter came up for hearing, RC prayed that proposal to settle the complaint amicably be dropped because their office had failed to obtain a response from the Solicitor General. RC further prayed to the Tribunal to allow them file written submissions to that effect. Accordingly, the Tribunal granted R's side one and a half months to file submissions. The attempt by the Tribunal to accord R's side adequate time to comply with the Tribunal ruling was also unfruitful.

The foregoing explanation notwithstanding, the Police may have had all reasons to arrest C as per the provision enshrined under Article 23(4) (b) part (a) but failed to observe the requirement or producing the complainant before court within forty-eight hours.

Having evaluated the evidence as whole I, state categorically that I am convinced, that C's right to personal liberty was violated by State agents having spent six days in unlawful custody.

I accordingly resolve this issue in the affirmative. Hence, the claim made by C in this respect succeeds.

## **Issue 3: Whether R (Attorney General) is liable.**

As I have already stated in the above two issues I have resolved, the people who violated C's two rights were State Agents employed by the government of Uganda. These Agents violated the said rights in their line of duty enshrined under the 1995 Constitution and the Police Act Cap 303. In the case of **X-TEL Limited and Insurance Company of East Africa (U) Ltd V Security 2000 Limited, HCCS-CCOCS-163-2004** Justice Kiryabwire referring to the case of **Lakungu V Lolobo (2003) 1 E. A 129** held that "it is a well-established principle of law that a master is vicariously liable for the acts of his servant or agent upon proof of existence of the employment relationship, that the employer/agents were acting in the course of employment. Article 119(4) (c) places a responsibility upon the Attorney General of Uganda to represent the Government in all civil cases to which it is a party. It is therefore by virtue of the relationship established by

Statute and facts of this complaint that the Attorney General should be held vicariously liable for the violation of C's rights.

## **Issue 4: Whether C is entitled to any remedies.**

Article 53(2) (b and c) ofthe Constitution places upon the Commission a mandate to for compensation or any other remedy or redress to victims of human rights violation if it is satisfied that a human right or freedom has been violated.

As I consider determining damages to be paid to C for each of the two violations, I shall definitely take into account the case of **MATIYA BIRYABALEMA AND OTHERS Vs UGANDA TRANSPORT COMPANY SCCA No. 10/1993,** where court stated that:

> Courts ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present.

## **a) Violation of the right to personal liberty**

In the case of **ABDUL MAKA Vs JINJA DISTRICT COUNCIL, HCCS No.60/2000 (Unreported),** the plaintiffwas detained for seven (7) days. Justice Yorokamu Bamwine awarded UGX 2,000,000= for the violation of his right to personal liberty.

In this instant complaint, C was detained for 5 (five) days having further subtracted off the 48 hours totaling to 2 days and the day C was produced in court. The total days of unlawful detention left are 5 that is two days less of the week valued at Ugx 2,000,000. Considering the value of money and principles of award of damages, I deem a figure of **UGX 1,500,000=** adequate compensation to be paid to C for the violation of his right to personal liberty.

I therefore order as follows

## **ORDERS:-**

- 1. The complaint is allowed wholly. - 2. R (Attorney General) is ordered to pay to C, Businge Adolf a total sum of 1,500,000= **(Uganda Shillings One million, Five Hundred only)** for the violation of his right to personal liberty. - 3. Each party to bear their own costs. - 4. Either party not satisfied with the decision of the Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date of this decision.

So it is ordered.

*li'* **DATED at Fort portal on this ....<20.... DAY OF.^^. Y.2022.**

**SHIFRAH LUKWAGO PRESIDING COMMISSIONER**