Fatuma Isoke & Others v Attorney General (Complaint UHRC 40 of 2012) [2016] UGHRC 5 (1 December 2016)


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION **AT KAMPALA COMPLAINT UHRC NO. UHRC/40/2012**

- 1. FATUMA ISOKE :::::::::::::::::::::::::::::::::::: - 2. BABIRYE HAWA - 3. REHEMA MWAMI - 4. MADINA MWATSI

#### -AND-

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

### BEFORE COMMISSIONER MEDDIE B. MULUMBA

#### **DECISION**

The complainants brought this complaint against the respondent seeking compensation for alleged violation of their right to personal liberty. They told the tribunal thaton 14/2/2008 they were arrested from their home situated at Kakajo 11, Bukesa Parish, Kampala District on allegations of murder and detained at Old Kampala Police Station. That except for Madina Mwatsi who was detained for 5 days, the others were detained for 11 days and on 25<sup>th</sup> February 2008, they were remanded to Luzira Government Prison. That Babirye Hawa, the 2<sup>nd</sup> complainant was granted bail by Mwanga II Court on 28<sup>th</sup> February 2008. That in October 2011, the charges of murder against the complainants were dismissed

The respondent through his representative Ms. Gorreti Arinaitwe denied the complainants' accusations.

#### **ISSUES**

- Whether the complainants' right to personal liberty was violated by $\overline{1}$ the respondent's agents. - Whether the respondent is liable for the violations. $2.$ - Whether the complainant is entitled to compensation. $3.$

$\mathbf{1}$

Before I resolve the above issues I wish to note from the record that this matter was heard by my colleague the former Commissioner Violet Akurut Adome. The decision is therefore solely based on her record of proceedings.

The respondent cross examined the complainants but never called any defence witnesses despite several adjournments nor did she file submissions in defence of the matter.

The complainants however retained the duty to prove their case against the respondent to the satisfaction of the tribunal in accordance with the provisions of the Evidence Act.

Under S.101 (1) of the Evidence Act Cap $6$ ;

" Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that the facts exist"

And under S.102 of the Evidence Act (supra);

"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

I shall now proceed to discuss the issues raised with confidence that the tribunal has observed the rule of natural justice.

### Issue 1: Whether the complainants' right to personal liberty was violated by the Respondent's Agents

Violation of a right to personal liberty means the unjustified deprivation of the freedom from movement.

Richard Clayton & Hugh Tomlinson in their book the law of Human Rights volume 1 at page 455 write as follow;

"The tort of false imprisonment is committed by someone who intentionally subjects another to total restraint of movement either by actively causing his confinement or preventing him from exercising his privilege of leaving the place where he is. Any interference with liberty is unlawful unless the person responsible for the imprisonment can show that it is justified."

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda and various International Human Rights Instruments to which Uganda is signatory.

Article 23(1) of the Constitution of the Republic of Uganda provides circumstances where a person can be lawfully deprived of his or her personal liberty. In particular Article 23(1)(c) provides the exception of bringing the person before a court in execution of an order of the order of the court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda.

### Isiko Fatuma (CW1) testified that on 14<sup>th</sup> February 2008,

While at her Kiosk at Kakajo, a one Ambrose attending to a neighboring Kiosk stole a phone from his customers and hid it in his rented room on Hajjat Rehema's premises. This resulted into a scuffle and on the invitation of her daughter, she went out for find out what was happening. That on reaching the scene, she found Ambrose being beaten for stealing a phone. She pleaded with the assailants to stop beating Ambrose on promise that she would pay for the lost phone but the beatings continued?

She further testified that;

"They beat him which made me to call the police who instead arrested me and my three daughters and took us to Old Kampala Police Station. We were kept in cells for 11 days before we were taken to Muwanga II Court on 25<sup>th</sup> February 2008 and remanded to Luzira Prison. It was Rehema, Hawa and I. On a Monday we were taken back to court; Hawa Babirye was released on bail and the two of us were taken back to Luzira for two weeks when we were bailed out. They charged me with the murder of Ambrose whom I called the police to rescue since he had been badly beaten by the mob for stealing the phone. I continued reporting to Court for a period of about 6 months, then remanded to Luzira for about 2 years and on 13/10/2010 we were told not to go to court again"

The lock up register from Old Kampala Police Station was tendered in as exhibit (CX1). The lockup reveals that the complainants were detained at police for 7 days contrary to the 11 days claimed by the complainant.

Upon cross examination by Counsel for the respondent, CW1 stated that she did not know that it was the role of Police to arrest anyone suspected of having committed an offence. That Ambrose had stolen the phone and that there were many people who had gathered. She further stated that Ambrose died from the place where she was residing and the mob was hostile to him and that the police officers arrested her to help in the investigations of the matter.

Babirye Hawa (CW2) testified that Fatuma Isoke (CW1) was her mother and that on 14<sup>th</sup> February 2008 when she had just completed Senior 4, there was a boy at their neighborhood called Ambrose who was selling at a kiosk at Sir That some students from Makerere Apollo Kagwa, Old Kampala Road. University had gone to eat from the kiosk and while they were eating, they had put their phone on the table. That the phone disappeared and they asked Ambrose about the phone since he too had disappeared but he denied That as they were looking for the phone, people gathered knowledge of it. around the kiosk.

She further stated that;

"Ambrose was accused of the taking the phone. This was about 5.30 p.m when a quarrel started and many people had gathered, so I called my mum who was at the construction site a little further from the scene after a while she came and saw what was happening, she inquired from the girls what had happened. When the girls said the boy had stolen their kabiriti phone, she denied the allegations since Ambrose was from the village, but when the phone was rang, it sounded from Ambrose's room; this angered the people and they started beating him. Since the crowd had become rowdy, my mother Isoke called the police to come and intervene. By the time they intervened, the boy had been beaten to death and at that time, most people went away when they saw the police. They came in a patrol car – a woman and policeman in police uniform. When they arrived, they checked the boy and found out he was dead. They inquired to know the owner of the place which my mother responded and The police picked her and the people gathered others that it was hers. pinpointed at me too, since I was standing at the door step and the police arrested me too and one of my sisters Maami who had just come from her Valentine's celebration, since it was Valentine's Day. We were taken to Old Kampala Police Station at about 8.00 p.m or 9.00 p.m."

That they made statements at police on what had happened. That the following day, her sister madina Mwatsi too, who had goneto see them was also detained but after about a day; while her and her mother stayed in until on 28<sup>th</sup> February, when they were taken to Buganda Road Court from where they were taken to Luzira. That by then she was 16 years old after appearing before court, but her mother and her sister Rehema Mwami were taken back to Luzira until 2011 when they got released.

Upon cross examination by Counsel for Respondent she stated that two police officers arrested them and there was a mob at their home. She also stated that if police had not rescued them the mob would have ascended towards them. That therefore police provided security for them.

Upon re-examination by Commission Counsel the witness stated that she wanted Government to compensate them for the long detention

Rehema Mwami(CW3), testified that on 14<sup>th</sup>February, 2008, while they were staying in Old Kampala Road she heard that Ambrose had stolen a phone. That she rushed back home on a boda boda and found so many people and two police vehicles. That the people were calling her mother a murderer. That at home, there were many police officers in uniform and carrying guns while others were not. That they pointed a gunat her alleging that she was also the daughter of CW1. That at that time, her mother was at home and she told her that she had called the police.

That later, four of them, including her mother, little sister and Emily were taken to Old Kampala Police Station to make statements on promise that they would return thereafter. That when they reached the station, they were taken straight to the cells and told that they would make statements the following day and that police were guarding their home.

She further testified that;

"The following day we waited for them to call us for statements but they did not; my sister Madina Mwatsi came and requested to see us. The O. C ordered that she too be arrested that she was also a murderer. On 25<sup>th</sup> February, the O. C came to our cell and called us murderers and that we were to go court on that day. We were taken to Muwanga II Court, and the Magistrate sent us to Luzira on accusation of murder of Ambrose and that we would appear before her the following day."

Upon cross examination by Counsel for the respondent, she stated that there was a mob at home when she went there and did not think it was right for them to be taken to Police. That the mob burnt their house when they left for the police station but that was not in their presence. Madina Mwatsi (CW4), testified that on 14<sup>th</sup> February 2008, at about 8.30 p.m, her mother called her and informed her that a boy called Ambrose(who was working with an aunt) had died and they were being taken to police. That her mother was a suspect and was being taken to police to make a statement.

She further testified that;

"When I reached the Police, I was not allowed to see them, so I came home. The following day, when I took tea for them, that is my mother and sisters Babirye Hawa and Rehema Mwami, the O. C (Moses Mutabingwa) told me I had come to see the murderers and I told him that they were not murderers and he emphasized that the case against them was murder, occasioned by mother and daughters. Since I am also her daughter, I was also put into the cells. I was in detention for 5 days and on the 6<sup>th</sup> day, I was released after my aunt called Mary Kamya and uncle Baguma came and stood surety for me and that the O. C said I was not part of the case. The others stayed in for more period and were remanded in Luzira."

Upon cross examination, she stated that she was detained for a period of 5 days unlike the others whom she left in detention.

I find that the fact that the complainants were arrested and detained by the respondent's agents in not doubt. The complainants' testimonies corroborate each other with the fact that there was an arrest and detention beyond 48hours.

I however note that there are contradictions on the period spent in detention especially by the 1<sup>st</sup> complainant who testified that they were in detentionfor 11 days contrary to the 7 days revealed in the lockup register. Further, CW4 was detained for 5 days different from CW1,2&3. The question lingering in my mind is whether **CW1** intended to lie before the tribunal about the period spent in detention or it was a mistake on her side as she had forgotten the period spent in detention?

Reference is made to the case of **Uganda Vs Abdullah Nasur (1977) HCB** where it was held that in assessing evidence of a witness, reliance placed on its consistency is a relevant consideration. Where grave inconsistency may have no adverse effects on the testimony it may be admissible unless it points to deliberate untruthfulness.

Similarly in the case of Abdullah Dhala Vs Sadruni civil appeal No 32 of 1994, Oder JSC held that where there are contradictions in the evidence of a factor in law is whether they were such major witness, the deciding contradictions as to indicate that the witness deliberately told lies to court.

In my opinion, the contradiction in CWI's testimony is not grave in nature to warrant deliberate untruthfulness on the part of the complainant.

As stated earlier, the respondent did not call any evidence to rebut that of the complainant but did cross examine the complainants. Further, the respondent presented no defence witnesses nor did he file any submissions to question the quality of the complainants' evidence. The complainants' evidence was not only solid but largely unchallenged.

What lingers in my mind is if the police officers arrested the complainants to go and help in the investigations of the murder of Ambrose, was the detention beyond the 48 hours justified in the circumstances that there was a clue that the victim had been beaten up by a mob on allegations of stealing a phone.

I therefore find on the balance of probabilities that the respondent's agents violated the complainants' right to personal liberty. Even though the arrest of the Complainants was justified within the meaning of Article 23 (1) (c) of the Constitution; as they were suspected to have unlawfuly caused the death of Ambrose, and hence committed a crime of murder, this tribunal faults the state on their failure to produce the Complainants in court within 48 hours from the time of the arrest. This amounted to a violation of their right to personal liberty contrary to Article 23(4) (a)&(b) Of the Constitution of the Republic of Uganda.

## 2. Whether the respondent (Attorney General) is liable for the violations against the complainant's rights

Asresolved in the above issue, there was a violation of the complainants' right personal liberty, contrary to Article 23 of the 1995 constitution of Uganda.

According to Article 119(4) (c) of the Constitution and Section 10 of the Government proceedings Act, the Attorney General is mandated to represent Government in any civil proceedings to which Government is party.

The Government of Uganda's function of being responsible for defence, security, maintenance of law and order, as recognized under Article 189 and item 2 in the 6<sup>th</sup> scheduleto the constitution of Uganda 1995 as amended, is the furthest end of the criminal justice system in Uganda under the auspices of Government's duty of keeping law and order is vested in the Uganda Police Force.

As such, going with the principle of vicarious liabilityas stated in Muwonge Vs A. G (1967) EA 17, government is vicariously liable for the acts of police officers in this regard. It is immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable. It is thus irrelevant whether the acts done by the police officers were unjustified or unauthorized as long as they did such acts in the course of their employment their

Similarly in the case of Jones Vs Tower Boots Co. Ltd 1997 ALLER 40 B the court held that an act is within the course of employment if it is either a a wrongful and unauthorized wrongful act authorized by the employer, or mode of doing some act authorized by the employer

$\overline{7}$

In the instant case the police officers attached to Old Kampala Police station arrested the complainants and detained them in custody for 7 and 5 days. These police officers both individually and severally worked on behalf of the state which is their master hence it is proper for Attorney General to represent Government in this matter. Therefore the Attorney General in this matter is vicariously liable for the violation of the complainants' rights to personal liberty.

### 3. Whether the complainant is entitled to compensation:

Article 53(2) of the Constitution provides that:

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

$(a)$

(b) payment of compensation; or

(c) any other legal remedy or redress."

Having held that the respondent's servants/agents violated the complainants' rights to personal liberty, it follows that they are entitled to compensation by the respondent.

In the case of Agaba Bernard Vs. Attorney General UHRR(2008-2011) Commissioner Fauzat Mariam Wangadya held that the complainant was entitled to compensation for violation of his right to personal liberty and that it was the practice of the Tribunal to award U. Shs 2,000,000=( Uganda Shillings Two Million) for every seven (7) days of unlawful confinement.

In the instant case, the complainants CW1,CW2& CW3 were detained at the Police Station for a period of 7 days without being produced before Court while CW4 was detained for 5 days. I take note that even though the complainantswere produced before court, the charges of murder brought against them were ultimately dismissed.

Looking at the circumstances under which the complainants were arrested and detained, this was accepted and confirmed by all the complainants that it was for their protection since the mob would have lynched them. However, I also note that the Police failed in the protection the Complainants' property since they state in their testimonies that immediately after their arrest and detention at Old Kampala police station, their house was burnt down. The police should have at least been equally concerned about this incident and made attempts to investigate it or even cause some arrest. The Police acted as if they had already condemned their suspects for murder and even refered to them as murderers; and did not care about their rights while in detention. This attitude this condemned as it violates the right to a fair hearing with regard to the presumption of innocence that is protected by Article $28(3)(a)$ .

Wherefore, I deem a figure of UgShs.2, 500,000(Two Million Five Hundred Thousand Shillings) each adequate compensation to Isiko Fatima (CW1), Babirye Hawa (CW2) and Rehema Mwami (CW3). I so award.

I also deem a figure of **Ug Shs 1,500,000** (One Million Five Hundred Thousand Shillings) adequate compensation to Diana Mwatsi (CW4). I so award.

#### **ORDER**

1. The complaint is allowed.

- 2. The Respondent is ordered to pay to Isiko Fatuma (CW1), Babirye Hawa (CW2) and Rehema Mwami (CW3) a sum of UG Shs. 2,500,000/-(Uganda Shillings Two Million Five Hundred Thousand) each as compensation for the violation of their right of Personal Liberty. - 3. The Respondent is ordered to pay to Madina Mwatsi (CW4) a sum of UG Shs. 1,500,000/- (Uganda Shillings One Million Five Hundred Thousand as compensation for the violation of her right of Personal Liberty. - 4. The total sum of **UG Shs.9, 000,000**/= (Uganda Shillings Nine Million, Five Hundred Thousand) will carry interest at court rate from the date hereof until payment in full. - Any party dissatisfied with this decision or any part thereof may appeal to the High Court within 30 days from the date hereof.

Dated at Kampala this $\ldots$ day of $\ldots$ 2016.

$ct$

Mine

MEDDIE B. MULUMBA PRESIDING COMMISSIONER