Eroku v Attorney General (Complaint UHRC/SRT/166/2010) [2019] UGHRC 22 (7 May 2019)


## **THE REPUBLIC OF UGANDA**

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

## **HOLDEN AT SOROTI**

## **COMPLAINT UHRC/SRT/166/2010**

**EROKU CHARLES ::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

# **-AND-**

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

# **BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA**

## **DECISION**

The Complainant (C), Eroku Charles alleged that on 5th May, 2010, he was arrested by a one Ebaku Jimmy, a retired soldier, on the allegation of murder and taken to Wera Police Post. That he was transferred to Amuria Central Police Station (CPS) the next day, where he was further detained until 13th May, 2010.

C therefore came to the Uganda Human Rights Commission (UHRC) to seek for redress for the alleged violation of his right to personal liberty by State agents.

The Respondent (R) through their representative (RC), State Attorney Juliet Topasho denied liability and opted for putting up a defense against the allegations made by C.

## **Issues**

The 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 for the violation. - 3. Whether C is entitled to any remedy.

Before I resolve the aforementioned four issues, I must point out that from the record ofthe Tribunal proceedings for this matter RC was only able to cross-examine C. R's side also neither called any witnesses in defence in this matter, nor filed any written submission. Nevertheless, C has still retained the duty of proving his case against R to the satisfaction of the Tribunal as required under Sections 101 (1) and 102 ofthe Evidence Act Cap 6.

Let me now resolve the aforementioned three issues.

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

C testified that on 5th May, 2010 at about 2:00 p.m, he was arrested by Ebaku Jimmy, a retired UPDF Soldier on the allegation of murder and taken to Wera Police Post. That Ebaku Jimmy left him there since he was not a police officer, and C was latter interrogated by the District Internal Security Officer (DISO) about the alleged murder. That on the next day, he was transferred to Amuria Central Police Station (CPS) where he was further detained until 13th May, 2010 when officers from the Uganda Human Rights Commission (UHRC) intervened in his matter and obtained his release.

During cross-examination, C reiterated that he was arrested by Ebaku Jimmy who was known to him. That although he could not recall the dates very well, he believed that he was detained from around 6th up to 13lh May, 2010. That he spent nine days in detention and when he was released he was not given any document regarding his release.

The Lockup registers from Wera Police Post and Amuria CPS were admitted together as CXI.

The right to personal liberty is guaranteed for all peoples by Human Rights law at International, Regional (African) and National (Uganda) levels. The right is guaranteed and protected under Article 3 of the Universal Declaration on Human Rights (UDHR) of 1948, Article 9 of the International Convention on Civil and Political Rights (ICCPR) of 1976, and at Regional level, under Article 6 of the African Charter on Human and Peoples' Rights of 1997. All these instruments have been signed and ratified by Uganda which therefore has the obligation to comply with their provisions.

The same right is also nationally protected under Article 23 of the Constitution of Uganda. According to this Article, personal liberty may only be denied or interfered with in exceptional circumstances that are also clearly defined under the same Article. Therefore, anybody or authority that denies this right can only legally do so if that person or authority relies on any ofthe exceptions or circumstances that are provided for under that same Article.

Article 23 also prescribes the procedural requirements to be respected and complied with by any person or authorities that arrests or detains another person. The Article provides that a person arrested or detained 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 released be brought to court as soon as possible but in any case not later than 48 hours from the time of arrest.

Therefore, in a complaint based on alleged violation of the right to personal liberty, it is necessary to consider and determine whether the Complainant was actually arrested or detained, whether the arrest or detention was permissible under clause <sup>1</sup> (a) to (h) of Article 23 of the Constitution, and whether any of the procedural requirements under Article 23 of the Constitution was infringed upon.

Therefore, the key question I must consider now, is whether C was illegally detained by the aforementioned police officers in breach of Article 23 (4) of the Constitution of Uganda and also ignoring the relevant provisions in the International and African Regional human rights legal instillments I have cited already.

C's claim that he was arrested on 5th May 2010, and detained at Wera Police Post from that day until the next day, 6th May, 2010 was effectively corroborated by the lock up register from Wera Police Post. However, the lock up register from Amuria CPS indicated that he was detained at that Police Station until 11th May 2010, and not 13th May, 2010 as had been claimed by C. I am therefore taking the dates on the said official documents to be the correct dates to be considered in resolving this matter.

As I pointed out earlier, R's side neither called any defense witnesses nor filed any written submission in this matter to rebut C's evidence. On the other hand, the cross-examination that RC did never shook C's well corroborated evidence to discredit it in any way. Accordingly, I shall uphold the principle that was adopted in the judgment that was delivered in the case of EDEKU Vs. ATTORNEY GENERAL, (1995), XI KALR 24 in which court held that:

> Contentious issues in a case are deemed admitted where a defendant does not call evidence in rebuttal.

Therefore, based on the evidence I have assessed, I find on the balance of probabilities that C's right to personal liberty was indeed violated for most of the duration when he was detained from 5th to 11th May, 2010 when he was released. This therefore amounts to a total of seven (7) days in detention thus, making it five (5) days of illegal detention since the first two days of his detention were lawful as per the afore-cited provisions of the Constitution of Uganda.

Therefore, C's right to personal liberty was violated by the State agent who detained him illegally for those five days.

Accordingly, C's claim in this respect also succeeds.

## **Issue 2: Whether R is liable for the violation.**

Article 119 ofthe Constitution ofUganda provides that the functions of the Attorney General shall include among others, to represent the Government of Uganda in courts or any other legal proceedings to which Government is a party. Accordingly, since these allegations were brought by C citing a soldier and the police personnel who detained him as the culprits in this matter, and all the cited security operatives were employed by security agencies of the Government of Uganda, it was proper for the Attorney General to be the Respondent in this matter.

However, I shall decide this issue in line with the legal principle that was stated in the case of **MUWONGE VS ATTORNEY GENERAL, (1967) (EA) 17,** in which Justice Newbold P. gave his judgment holding that: "The law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are for which the master is to be held liable."

It has already been established and ruled that C's right to personal liberty was indeed violated by the said State agents who detained him beyond 48 hours; and that the same security operatives were carrying out their official duty of detaining suspects when they violated C's right.

I therefore find it fitting to hold R (Attorney General) vicariously liable for the violation of C's right already proved.

Accordingly, C's claim in this regards also succeeds.

#### **Issue 3: Whether C is entitled to any remedy.**

Article 53(2) (b) of the 1995 Constitution of Uganda empowers the Uganda Human Rights Commission, once it gets satisfied that there has been an infringement of a human right or freedom, to order for redress which may include among other forms, payment of compensation.

I now invoke these powers.

Having resolved issues <sup>1</sup> and 2 in the affirmative, I find that C is entitled to compensation.

However, I shall determine the quantum ofthe damages to be ordered taking into account the case of **MATIYA BYALEMA AND OTHERS VS UGANDA TRANSPORT COMPANY, SSCA NO 10 OF 1993,** where it was 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."

In **BAKALIRAKU VINCENT & ANOR. -VS- ATTORNEY GENERAL, COMPLAINT NO. UHRC 316/2004,** it was held that it was the practice ofthe UHRC Tribunal, borrowing from the precedents of High Court, to award complainants UGX 2,000,000= (two million shillings only) for illegal detention of every seven (7) days (a week).

As already confirmed, C was illegally detained for 5 days. Therefore, going by the aforementioned rate for compensation but also considering the value ofmoney today, I award C, a sum of UGX. 2,000,000= (two million shillings only) as general damages for the violation of his right to personal liberty.

I therefore order as follows:

#### **ORDERS**

- 1. The complaint is allowed. - 2. R (Attorney General) is ordered to pay to C, Eroku Charles a sum of UGX 2,000,000= (Uganda shillings two million only) as compensation for the violation of his right to personal liberty. - 3. The total sum of UGX 2,000,000= (Uganda shillings two million only) shall carry interest at 10% per annum calculated from the date of this decision until payment in full. - 4. Each party shall bear its own costs.

5. Either party not satisfied with this decision has the right to appeal to the High Court ofUganda within 30 days from the date ofthis decision.

Dated at SOROTI on this

**DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER**