Kakwenza Rukirabashaija v Attorney General (Miscellaneous Cause 35 of 2021) [2024] UGHCCD 161 (23 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMAPALA (CIVIL DIVISON) MISCELLANEOUS CAUSE NO. 35 OF 2021**

**KAKWENZA RUKIRABASHAIJA ::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

**VERSUS**

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

### **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

### **Introduction**

[1] The applicant brought this application by Notice of Motion under Article 50 of the Constitution of Uganda, Sections 3, 4, 6(2), 6(3) and 10 of the Human Rights (Enforcement) Act 2019, Section 33 of the Judicature Act and Rules 2, 3, 5(1)(a) and (d), 7, 8, 9, 10 & 11(1)(a), (f), & (2) of the Judicature (Fundamental Rights and Other freedoms) (Enforcement Procedure) Rules, 2019 seeking the following declarations and orders;

a) A declaration that the actions by the respondent's officers of arresting, beating, wounding, torturing, kicking, blindfolding, taunting, detention in toilet, hanging, dragging while handcuffed, and incommunicado detention of the applicant from 13th April 2020 to 20th April 2020 constituted breach of his guaranteed human dignity and freedom from torture, cruel, inhuman or degrading treatment or punishment under Articles 20, 24, 28(1) and 44(a) of the Constitution of the Republic of Uganda.

b) A declaration that the act of the respondent's officers of detaining the applicant incommunicado from 13th April 2020 to 20th April 2020 ( a period of seven days/ 168 hours) was illegal and violated the applicant's personal liberty and freedom of movement guaranteed under Articles 23 and 29(2)(a) & (b) of the Constitution.

c) A declaration that the acts by the respondent's operatives/officers of invading, entry, search and interference with the applicant's person, property, home and/or residence without a search warrant threatened and infringed on the applicant's rights to privacy of person and property contrary to Articles 20, 27(1)(b) and 27(2) of the Constitution of Uganda.

d) A declaration that the arrest, detention and torture by the respondent's officers ignited by the publication of the applicant's novel "The Greedy Barbarian" was a violation of the applicant's freedom of speech, expression, conscience and belief guaranteed by Article 29 of the Constitution of Uganda.

e) An order directing the respondent to pay general damages for the human rights violations and transgressions, inconvenience and mental anguish.

f) An order directing the respondents to pay punitive/exemplary damages for the high handed, oppressive and unconstitutional conduct of its officers. g) An order directing the respondent to pay costs of the application to the applicant.

[2] The grounds of the application are set out in the Notice of Motion and in the affidavit in support of the application deposed by the applicant and another affidavit deposed by **Basiima Eva**, the wife to the applicant. In his affidavit, the applicant stated that he is a journalist, law student, farmer, political activist, author and an avid social media participant. The applicant stated that on Easter Monday, 13th April 2020, military men, some in full combat and others in civilian clothes with CMI identifications arrested and kidnapped him from his home in Iganga District, blindfolded and drove him to an initially unknown destination which he later learnt from other detainees to be Mbuya CMI Headquarters. While at the CMI Headquarters, he suffered incommunicado and often solitary detention in a toilet within the dark dungeons until 18th April 2020 when they dragged him and other three inmates to the Special Investigations Division in Kireka where he endured further illegal detention.

[3] The applicant stated that on Tuesday 14th April 2020, the CMI operatives hanged him while hand and leg cuffed on metals at the stair case connecting the ground floor to the 1st floor from 5:00pm to 8:00am the following day when they resumed their brutish interrogation. He stated that they knocked his ankles using gun butts, batons and other solid objects, leading to the swelling of the ankles. He further stated that they denied him his glasses, denied him medicine, punched his eyes and flogged him with sticks. He stated that he was blindfolded during the military detention except in the toilet where he was sleeping. He was forced to kneel on stones with his arms straight tied from above his head and feet and chained from behind. He further stated that on 15th April 2020, his captors briefly rushed him to his Iganga home where they searched his house and confiscated more of his properties including a laptop charger and a copy of his novel "the Greedy Barbarian" having already searched him and taken phones and laptop on the day of his arrest. On Thursday 16th April 2020, unable to reach and use the toilet bowel, he painfully managed to urinate in a sink in the toilet room and he urinated blood. He averred that the sight of his urinated blood intensified his fear and trauma. He told a purported military doctor about his torture and pain but he was rudely rubbished.

[4] The applicant also averred that he was subjected to water boarding while blindfolded, dragging him on the ground and almost drowned as he was deprived of breath. He stated that his torturers avoided to use or mention their names but always employed coded language, acronyms and pseudonyms. He stated that the interrogation which was dominated by threats and beatings occurred every day and focused on his novel "the Greedy Barbarian" and questions related to his social media posts. He stated that whenever he failed to explain any of the face book friends or phone contacts, or if they did not like the answers he gave, they would beat him. He was also forced to 'vomit' the passwords for his computer and social media accounts which the operatives accessed during interrogation. On the morning of 20th April 2020, he was driven by police to Iganga where he was arraigned before the magistrates' court without a lawyer and remanded to Busesa Government Prison where he was humanely treated. He was still suffering from the trauma and pain of military detention when close friends and family visited him in prison. He stated that even at the time of filing the suit, he was still under military surveillance and his family and himself were living in perpetual fear of imminent abduction and illegal detention. He concluded that since the abduction ordeal, his body sometimes gets paralyzed, he gets nauseated, his kidneys are in pain and his eyes hurt. He had medical advice predating his current predicament whereby he was supposed to draw out blood every three weeks which he was unable to do due to incarceration.

[5] In her affidavit, **Basiima Eva** (the applicant's wife) stated that on 13th April 2020 at around 2:30 pm, plain clothed security operatives picked her husband from their home in Busei A village, Nakalama Sub County, Iganga District. The operatives ordered the applicant to hand over his phones, National ID and laptop and also commanded him to dress up and put on shoes. She demanded to know why they were arresting him and where they were taking him but they refused to give any details except for the fact that they were taking him to Kampala. On 15th April 2020, the plain clothed personnel returned to their Iganga home where they searched their house and confiscated more of her husband's properties without a warrant. The children and herself were left shocked and traumatized to see their father being forcefully and hurriedly taken by strangers. Her husband gained freedom after a week during which she fruitlessly searched for him from a number of places including the CMI headquarters. She first saw him at court when soldiers brought him to Iganga Court from where he was remanded. She averred that at court, in prison and when he returned home, her husband was frail, traumatized and visibly tortured physically and mentally. She concluded that her husband's ordeal traumatized and disorganized the entire family especially the children who ever since his arrest endure nightmares and always expect a repeat of the abduction.

[6] The respondent opposed the application through an affidavit in reply deposed by **Mugisha Twinomugisha,** a State Attorney in the Chambers of the Attorney General. He stated that the instant application is misconceived, incompetent, and amounts to an abuse of court process. He further stated that the Permanent Secretary, Ministry of Defence and Veteran Affairs informed the Solicitor General that the allegations contained in the affidavit of the applicant and that of Ms. Basiima Eva were false and denied and that there was no evidence to substantiate the applicant's claim. He prayed for dismissal of the application with costs.

#### **Representation and Hearing**

[7] At the hearing the applicant was represented by **Mr. Kiiza Eron** from M/s Kiiza & Mugisha Advocates while the respondent was represented by **Mr. Muwonge Mark**, a State Attorney from the Chambers of the Attorney General. The hearing proceeded by way of written submissions which were duly filed and have been adopted and considered by the Court while determining the matter.

#### **Issues for Determination by the Court**

[8] Counsel raised five issues that guided their arguments. However, the dispute between the parties boil down to two issues for determination by the Court, namely;

- *a) Whether the named rights and freedoms of the applicant were infringed by the actions of the respondent's agents?* - *b) Whether the applicant is entitled to the remedies claimed?*

## **Resolution of the Issues**

## **Issue 1: Whether the named rights and freedoms of the applicant were infringed by the actions of the respondents' agents?**

[9] The allegation by the applicant is that a number of his fundamental rights and freedoms were violated, namely; the right to personal liberty and freedom of movement, the right to freedom from torture, cruel, inhuman or degrading treatment, the right to privacy of the person and property, and his freedom of speech, expression, conscience and belief.

[10] Fundamental rights and freedoms are embedded in a country's constitution and the international bill of rights. In Uganda, Chapter 4 of the constitution contains the bill of rights. Article 20 of the Constitution of Uganda provides as follows;

- 1) Fundamental rights and freedoms of the individual are inherent and not granted by the state. - 2) The rights and freedoms of the individual and groups enshrined in this chapter shall be respected, upheld and promoted by all agencies of government and all persons.

[11] Under Article 50(1) of the Constitution, "Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation". Consequently, Section 3(1) of the Human Rights (Enforcement) Act Cap 12 provides that; "In accordance with article 50 of the Constitution, a person or organisation who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened may, without prejudice to any other action with respect to the same matter that is lawfully available, apply for redress to a competent court in accordance with this Act".

[12] With the above legal background, I will now proceed to investigate as to whether any of the named rights of the applicant was violated as alleged.

#### *The right to personal liberty and freedom of movement*

#### **Submissions by Counsel for the Applicant**

[13] Counsel submitted that according to Article 23(4) of the Constitution, any person who is arrested on suspicion of having committed a crime should be presented before a court not later than 48 hours. Counsel stated that under Article 23(5) of the Constitution, a person arrested must be allowed to inform his family of his arrest and the place of detention. Counsel submitted that the respondent's agents detained the applicant incommunicado from 13th April 2020 to 20th April 2020 well beyond the 48 hours and did not inform or allow access by the applicant's next of kin to his place of detention. Counsel prayed to the Court to find that the applicant's right to personal liberty was violated.

#### **Submissions by Counsel for the Respondent**

[14] In reply, Counsel for the respondent submitted that the respondent's agents never violated the applicant's right to personal liberty and freedom of movement. Counsel stated that the applicant did not adduce evidence that he was ever detained in military detention, CMI headquarters or any police station for the alleged number of days. Counsel argued that there was no evidence of any station diary number or any lock up register or evidence of an application for habeas corpus or any other like document to demonstrate that the applicant was illegally detained and the duration of the detention. Counsel referred the Court to paragraphs 1 and 5 of the affidavit in reply to the effect that the allegations contained in the affidavits in support of the application were false and that there was no evidence to substantiate the applicant's claim.

## **Determination by the Court**

[15] The lawfulness or not of an arrest and detention is governed by the provisions of the Constitution of the Republic of Uganda under Article 23 which makes provision for the protection of personal liberty. Article 23(1) gives exceptional circumstances under which a person may be deprived of his or her liberty. The relevant exception in the instant case is provided for under Article 23(1)(c) under which a person may be arrested and detained *"for the purpose of bringing that person before a court 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".*

[16] When a person is so arrested, restricted or detained, he or she shall be kept in a place authorized by law (Article 23(2) of the constitution. The person so arrested, restricted or detained shall be informed immediately of the reasons for the arrest, restriction or detention and his or her right to a lawyer of his choice (Article 23(3) thereof). When the person is 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, he or she 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 arrest (Article 23(4)(b) thereof. In addition, the person is entitled to be accessed by a next of kin, lawyer and a medical doctor or access to medical treatment (Article 23(5) thereof).

[17] In the present case, the evidence by the applicant is that he was arrested from his home in Iganga District by military men and others in civilian clothes on 13th April 2020, was blindfolded and driven to a destination that he later came to know from other detainees as the Chieftaincy of Military Intelligence (CMI) headquarters. It was averred that on 18th April 2020, he was dragged to the Special Investigations Unit in Kireka where he endured further detention and was driven to Iganga on Monday 20th April 2020 where he was arraigned before the magistrates' court without a lawyer and was remanded to Busesa Government prisons. The applicant also led evidence to show that he was not informed of the reason for his arrest and was not allowed to see his relatives or lawyers and the military doctor he told about his torture and pain rudely rubbished his complaint aside.

[18] On their part, the respondent put in a general denial to the effect that the allegations contained in the affidavits in support of the application were false and that there was no evidence to substantiate the applicant's claim. By this denial, I am unable to tell what exactly the respondent was denying; Is it being denied that the applicant was ever arrested at all in relation to this allegation? I find this denial totally unbelievable in view of the evidence before the Court. The law is that where facts are sworn in an affidavit and are not denied or rebutted by the opposite party, the presumption is that such facts are accepted. See: *Massa v Achen (1978) HCB 297*. In *Behangana & Another v Attorney General, Constitutional Petition No. 53 of 2010*, the Court dealt with facts and circumstances that were more or less similar to the present facts. The only available evidence in that case were the averments in the affidavits of the petitioners. The respondent led no evidence before the Court and, as such, the petitioners' evidence was unrebutted. The Constitutional Court believed the evidence of the petitioners and granted the remedies sought by the petitioners.

[19] On the evidence before me, I am able to believe and find as a fact that the arrest and detention of the applicant took place, he was detained at CMI headquarters Mbuya and Special Investigations Unit in Kireka before being driven to Iganga where he was arraigned before the court. There is also evidence showing that he was not informed of the reason for his arrest and was denied access by his next of kin. This evidence was not rebutted by the respondent and I have found it credible. The above occurrences make the arrest and detention of the applicant illegal and done in contravention of his right to personal liberty under Article 23 of the Constitution of Uganda. These allegations are accordingly proved by the applicant on a balance of probabilities.

## *The right to freedom from torture, cruel, inhuman or degrading treatment.*

## **Submissions by Counsel for the Applicant**

[20] Counsel for the applicant cited the provision of Article 24 of the Constitution which prohibits treatment that would amount to torture, cruel, inhuman or degrading treatment and Article 44 of the Constitution which makes the right non-derogable. Counsel also cited Section 2(1) of the Prevention and Prohibition of Torture Act Cap 130 which defines torture. Counsel submitted that the applicant was tortured or treated in an inhumane, degrading and humiliating manner by being blindfolded by the soldiers, detained incommunicado, hanged while handcuffed and leg cuffed on metals, solitary toilet detention and knocking his ankles using gun butts, batons and other solid objects, pounding his feet, and subjecting him to water boarding, beating and flogging with sticks. Counsel stated that the said actions of the police and army officers who are government officials amounted to torture, cruel, inhuman or degrading treatment of the applicant; for which the respondent is vicariously liable.

#### **Submissions by Counsel for the Respondent**

[21] Counsel cited the case of *Bukeni Ali & Ors v AG & 3 Ors HCMC 10 of 2021* to the effect that for court to come up with a finding of torture, the victim should present evidence which is credible and properly verified by medical reports and that it is not enough for the applicant's witnesses to only present sworn affidavits claiming applicants were tortured and that the signs of torture were visible on the applicants. Counsel for the respondent referred to paragraphs 2 and 4 of the affidavit in reply where it was averred that the Permanent Secretary, Ministry of Defense and Veteran Affairs had informed the Solicitor General that the allegations contained in the affidavit of the applicant and that of Ms. Eva Basiima were false and that there was no evidence to substantiate the applicant's claim. Counsel submitted that the applicant did not adduce any evidence to prove any of the allegations of torture.

# **Determination by the Court**

[22] Article 24 of the Constitution of Uganda guarantees freedom from torture, cruel, inhuman or degrading treatment or punishment. This right is nonderogable and is absolute according to Article 44(a) of the Constitution. Under Section 2 of the Prevention and Prohibition of Torture Act Cap 130, torture is defined as "*any act or omission by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as – (a) obtaining information or a confession from the person or any other person; (b) punishing that person for an act he or she or any other person has committed or is suspected of having committed or planning to commit; or (c) intimidating or coercing the person or any other person to do, or to refrain from doing, any act"*.

[23] According to Section 2(2) of the Prevention and Prohibition of Torture Act, "severe pain or suffering" means the prolonged harm caused by or resulting from the intentional infliction or threatened infliction of physical pain or suffering; or the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; or the threat of imminent death; among others. Under Section 2(3) of the Act, the acts constituting torture shall include the acts set out in the second schedule to the Act. These include physical acts such as systematic beating, head banging, punching, kicking, striking with truncheons, riffle buts; electric shocks; being tied or forced to assume a fixed and stressful body position; harmful exposure to elements such as sunlight and extreme cold; among others. They also include mental or psychological kind of torture such as blindfolding; threatening the victim or his or her family with bodily harm, execution or other wrongful acts; confining a victim incommunicado, in a secret detention place or other form of detention; confining the victim in a solitary cell; among others.

[24] On the case before me, the evidence by the applicant is that he was blindfolded by the operatives, detained incommunicado, hanged while handcuffed and leg cuffed on metals, subjected to solitary toilet detention and knocking of his ankles using gun butts, batons and other solid objects. He further stated that his feet were pounded, he was subjected to water boarding, beating, flogging with sticks. He was forced to kneel on stones with his arms tied from above his head and his feet chained from behind, chained on metal bars affixed on the wall. He stated that he painfully urinated blood which intensified his fear and trauma. These allegations as contained in the averments in the applicant's affidavit are corroborated by the evidence of his wife, Basiima Eva, who in her affidavit in paragraph 11 thereof, stated that when she saw her husband at the court, in prison and when he returned home, he was frail, traumatized and visibly tortured physically and mentally. He could hardly eat and he recounted how his ordeal was so bad that he nearly died save for God's intervention.

[25] As I have already indicated herein above, the above allegations and evidence were not rebutted by the respondent as the affidavit filed in reply only contained a general denial and made no answer to the specific allegations or averments made by the two deponents. I have found the averments in the two affidavits in support of the application to be capable of presenting a fairly true account of what transpired during the applicant's arrest and detention. The only obvious shortfall is that no medical evidence was adduced by the applicant and no explanation was made to the court as to the total absence of medical evidence in a case such as this! The narration made by the applicant is so graphic that it did not even require a medical specialist to make some diagnosis and assessment. The evidence by the applicant's wife is that the applicant was "frail, traumatized and visibly tortured physically and mentally". I am unable to comprehend how such a condition failed to be verified and supported by independent medical evidence.

[26] The effect of the above lacuna is that the court is disabled from making an independent assessment of the evidence of the applicant so as to reach firm conclusions. It creates a situation where the evidence before the court is simply the applicant's assertion as against the respondent's denial. As such, although on a balance of probabilities I would find that the applicant has made out a case of violation of his right not to be subjected to torture, cruel, inhuman or degrading treatment, when it comes to assessment and award of damages, there will necessarily be a discordance between his graphical narration of the torturous conduct he allegedly suffered and a reasonable award that could be made by the court upon available evidence.

[27] All in all, however, on the evidence before the Court I have found that the applicant has proved on a balance of probabilities that during the time he spent in detention, he was subjected to acts of torture, cruel, inhuman and/or degrading treatment.

#### *The right to privacy*

## **Submissions by Counsel for the Applicant**

[28] Counsel relied on the case of *Behangana & Anor v Attorney General Constitutional Petition No. 53 of 2010* to the effect that a search conducted without lawful authorization is in breach of Article 27 of the Constitution. Counsel also relied on Section 27 of the Police Act and submitted that the unjustified conduct of the respondent's officers of forcefully accessing his information was a total violation of his fundamental right to be left alone which is part of the right to enjoy life. Counsel referred to paragraph 32 of the applicant's affidavit in support where it was averred that the respondent's officers forced the applicant to 'vomit' the passwords of his computer and social media accounts and subsequently searched his gadgets without a court order hence encroaching on his information privacy.

# **Submissions by Counsel for the Respondent**

[29] In reply, it was submitted by Counsel for the respondent that there is no shred of evidence adduced before the court showing that the applicant ever owned/possessed any of the stated items and that no case was ever reported at any police station that the aforementioned items were stolen or missing. Counsel concluded that the applicant's right to privacy was never violated.

### **Determination by the Court**

[30] Article 27 of the Constitution provides as follows –

*"(1) No person shall be subjected to —*

*(a) unlawful search of the person, home or other property of that person; or*

*(b) unlawful entry by others of the premises of that person.*

*(2) No person shall be subjected to interference with the privacy of that person's home, correspondence, communication or other property"*.

[31] It was shown in evidence that the applicant's house was searched without a search warrant and his property taken, namely, his phones, laptop, lap top charger, novel, among others. It is to be inferred from the present facts that the applicant was arrested upon reasonable suspicion that he had committed or was about to commit a criminal offence under the laws of Uganda, in line with Article 23(1)(c) of the Constitution. The applicant was protected under Article 27(1)(a) of the Constitution from unlawful search of his person, home or other property. For the search upon the applicant and his property to have been lawful, it had to comply with the provisions of the Police Act Cap 324 and the Magistrates Courts Act Cap 19.

[32] The relevant part of Section 27 of the Police Act Cap 324 provides as follows;

*"(1) Whenever a police officer, not being lower in rank than a sergeant, has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he or she is authorised to investigate may be found in any place and that that thing cannot in his or her opinion be otherwise obtained without undue delay, the officer may, after recording in writing the grounds of his or her belief and specifying in the writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for that thing.*

*(2) …*

*(3) …*

*(4) The provisions of the Magistrates Courts Act as to search warrants shall, so far as may be, apply to a search made under this section.*

*(5) Copies of any record made under subsection (1) … shall immediately be sent to the nearest magistrate empowered to take cognisance of the offence and to the owner or occupier of the place searched.*

*(6) …*

*(7) Notwithstanding the provisions of this section or the provisions of the Magistrates Courts Act relating to the search of premises, no police officer shall search any premises unless he or she is in possession of a search warrant issued under the provisions of the Magistrates Courts Act or is carrying a warrant card in such form as shall be prescribed by the inspector general."*

[33] Section 69 of the Magistrates Courts Act Cap 19 provides that;

*"When a police officer has reason to believe that material evidence can be obtained in connection with an offence for which an arrest has been made or authorised, any police officer may search the dwelling or place of business of the person so arrested or of the person for whom the warrant of arrest has been issued and may take possession of anything which might reasonably be used as evidence in any criminal proceedings."*

[34] Section 70 of the Magistrates Courts Act Cap 19 provides as follows;

*"Where it is proved on oath to a magistrate's court that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, vessel, … or place, the court may by warrant (called a search warrant) authorise the person to whom the warrant is directed to search the building, vessel, … or place (which shall be named or described in the warrant) for any such thing and, if anything searched for is found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law"*.

[35] From the above provisions, it is clear that although the police have the power to search a person or his property upon suspicion that an offence has been or is about to be committed, the search must be done in accordance with the law and procedure set out above. Importantly, no police officer shall search any premises unless he or she is in possession of "a search warrant issued under the provisions of the Magistrates Courts Act or is carrying a warrant card in such form as shall be prescribed by the inspector general" as provided for under Section 27(7) of the Police Act. In the present case, there is no evidence that a police officer of the rank required under Section 27(1) of the Police Act was part of the team that searched the applicant's house. There is no evidence that a search warrant was obtained before the search. There is no evidence as to whether the police officer (if any) that carried out the search was in possession of a warrant card in such form as was prescribed by the inspector general of police.

[36] Given the grave allegations that were made by the applicant, the duty shifted to the respondent, under the law, to rebut the allegations by leading evidence that the search that was conducted upon the applicant's house was done lawfully, in accordance with the provisions of the law cited above. No such evidence was led by the respondent. The Constitutional Court in *Behangana & Another v Attorney General, Constitutional Petition No. 53 of 2010* pronounced itself on such a matter to the effect that where no search warrant or order of court was produced before the search, and no attempt was made by the respondent to justify the search in terms of those searches that are permitted without a search warrant, such a search would be unlawful and in contravention of Article 27(1)(a) of the Constitution. On the present facts, the allegation by the applicant that he was subjected to unlawful search of his person, home and other property in contravention of Article 27(1)(a) of the Constitution is proved on a balance of probabilities.

[37] The applicant further led evidence showing that his interrogation focused on his novel "the Greedy Barbarian" and was forced to disclose his passwords for his computer and social media accounts. He stated that the operatives examined every detail of the content therein and the applicant was beaten whenever he failed to explain any of his facebook friends or phone contact to their satisfaction. These allegations, too, were not specifically denied by the respondent. I have found them believable. According to Article 27(2) of the Constitution, no "person shall be subjected to interference with the privacy of that person's home, correspondence, communication or other property". The applicant has, therefore, proved on a balance of probabilities that his right to privacy was violated by the respondent's agents.

*The right to freedom of speech, expression, conscience and belief.*

## **Submissions by Counsel for the Applicant**

[38] Counsel for the applicant submitted that the actions by the respondent's agents were a violation of the applicant's freedom of expression contrary to Article 29(1)(a) of the Constitution. Counsel stated that the applicant was treated the way he was because of his novel and social media posts. Counsel stated that his interrogation was dominated by threats and beatings focused on his novel, social media posts and newspaper articles in which he expressed his opinion. Counsel prayed that the court finds that the conduct by the respondent's officers constituted a violation of the applicant's freedom of speech, expression, conscience and belief.

## **Submissions by Counsel for the Respondent**

[39] In reply, Counsel for the respondent submitted that the applicant has not adduced any substantial evidence to allude to the fact that he was beaten due to his novel, social media posts and newspaper articles, among others. Counsel stated that the applicant had therefore not proved a violation of his freedom of speech, expression and conscience.

## **Determination by the Court**

[40] Article 29(1)(a) & (b) of the Constitution provides that every person shall have a right to freedom of speech and expression which shall include freedom of the press and other media; and a right to freedom of thought, conscience and belief which shall include academic freedom in higher institutions of learning. The applicant led evidence showing that he was detained because of his novel and social media posts. He stated that his interrogation was dominated by threats and beatings focused on his novel "the greedy barbarian", social media posts and newspaper articles in which he had expressed his opinion. He stated that a copy of the novel was one of the items that were picked from his home when it was searched.

[41] However, although the applicant stated in the affidavit in support of the application that a copy of the novel was attached, I was unable to see any on record. I only saw a title page and two other pages with preliminary information, on plain paper. These are incapable of proving the existence of the novel and its role in the interrogation and alleged acts of human rights violation carried out against the applicant. Similarly, no extracts from the applicant's social media pages or from newspapers have been adduced in evidence. Since these were alleged to be existing pieces of literature, I do not see why copies of the same were not produced or as to why their nonproduction was not explained.

[42] As such, although I have found that the applicant was interrogated and subjected to treatment that in some respects have amounted to violation of his rights, I have not found credible evidence to prove that the reason for the said treatment was on account of the alleged novel, his social media posts or newspaper reports. The allegation based on infringement of the applicant's freedom of speech, expression, conscience and belief has, therefore, not been proved on a balance of probabilities.

[43] In view of my findings on issue 1, the applicant has proved violations committed against his rights to personal liberty, freedom from torture, cruel, inhuman and degrading treatment and the right to privacy. No violation has been proved as against his right to freedom of speech, expression, conscience and belief. The acts have been proved to have been committed by security officers or agents of the respondent who is vicariously liable under the law. Issue 1 is therefore answered in the affirmative.

## **Issue 2: Whether the applicant is entitled to the remedies claimed?**

[44] The applicant sought various declarations and orders in the application. Given the above findings, declarations shall issue to the effect that the actions by the respondent's officers or agents of detaining the applicant from 13th April 2020 to 20th April 2020 (a period of seven days) was illegal and violated the applicant's right to personal liberty guaranteed under Article 23(4) of the Constitution of Uganda; that the actions by the respondents' officers or agents amounted to torture, cruel, inhuman or degrading treatment and constituted breach of the applicant's right to human dignity and freedom from torture, cruel, inhuman or degrading treatment under Articles 24 and 44(a) of the Constitution of the Republic of Uganda; and that the acts by the respondent's officers or agents of unlawfully searching or interfering with the applicant's person, home and other property without a search warrant infringed on the applicant's right to privacy of person and property contrary to Article 27(1)(a) and (2) of the Constitution of Uganda. The claim based on infringement of the applicant's freedom of speech, expression, conscience and belief under Article 29 of the Constitution of Uganda has not been made out and no declaration has issued in that regard.

[45] The applicant sought for an order of general damages for the human rights violations and transgressions, inconvenience and mental anguish he suffered while in detention. The law on general damages is that general damages are the direct natural or probable consequence of the act complained of and are awarded at the discretion of the Court. The damages are compensatory in nature with the purpose of restoring the aggrieved person to the position they would have been in had the breach or wrong not occurred. See: *Hadley v Baxendale (1894) 9 Exch 341* and *Kibimba Rice Ltd v Umar Salim, SC Civil Appeal No. 17 of 1992.* In the assessment of general damages, the court should be guided by the value of the subject matter, the economic inconvenience that the plaintiff may have been put through and the nature and extent of the injury suffered. See: *Uganda Commercial Bank v Kigozi [2002] 1 EA 305*. Under the law, general damages are implied in every breach of contract and every infringement of a given right.

[46] In the assessment of damages arising out of a constitutional violation, the court has to bear in mind that although infringement of a person's liberty per se imputes damage, a plaintiff needs to prove some damage suffered beyond the mere fact of unlawful arrest or detention; otherwise, the mere breach may only entitle a plaintiff to nominal damages. This however may not be the same in the case of acts of torture, cruel, inhuman or degrading treatment whose severity may exist even without leaving physical footprints.

[47] In the present case, having found that the applicant was unlawfully detained in violation of his right to personal liberty, subjected to torture, inhuman and degrading treatment, and violation of his right to privacy; it follows that the applicant is entitled to compensation by way of general damages for such wrongful conduct on the part of the officers or agents of the respondent. Regarding the extent of the harm occasioned to the applicant and the assessment of the appropriate measure of damages to be awarded to the applicant, I have taken into account the facts surrounding the applicant's arrest and detention, the torture and pain he underwent, the period the applicant stayed under detention before being arraigned in court, and the physical and psychological pain suffered by the applicant at the hands of the respondent's agents from the time of arrest until he was released. The facts adduced by the applicant disclose sufficient evidence of physical and psychological pain, suffering and mental anguish suffered by the applicant.

[48] Counsel for the applicant made a suggestion of UGX 100,000,000/= to be awarded to the applicant as general damages. However, as highlighted herein above in paragraph 26 of this ruling, the court's assessment and award of damages in this case is materially affected by the total absence of any medical evidence or an explanation over the absence. Apart from the anticipation on the part of the court of the nature of injury suffered, the Court has no firm basis upon which to make a reasonable estimate when compared to the graphical description of the kind of treatment alleged by the applicant. As such, I have found a sum of UGX 40,000,000/= (Uganda Shillings Forty Million only) appropriate as general damages in the circumstances and I award the same to the applicant.

[49] The applicant further claimed for award of exemplary damages. Exemplary damages are not compensatory but are rather punitive or exemplary in nature. They represent a sum of money of a penal nature in addition to the compensatory damages given for the loss or suffering occasioned to a plaintiff/applicant. The rationale behind the award of exemplary damages is to punish the defendant and deter him from repeating the wrongful act. According to Lord Devlin in the land mark case of *Rookes v Barnard [1946] ALLER 367 at 410, 411* there are only three categories of cases in which exemplary damages are awarded, namely;

- a) Where there has been oppressive, arbitrary, or unconstitutional action by the servants of the government; - b) Where the defendant's conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff; or - c) Where some law for the time being in force authorises the award of exemplary damages.

Also See: *Fredrick J. K. Zaabwe v Orient Bank & Others, Supreme Court Civil Appeal No. 4 of 2006*.

[50] In the instant case, the applicant showed in evidence that the agents of the respondent acted in a high handed manner, without accountability for their actions and as if they were not responsible to anyone. Evidence has shown that the Applicant stayed under illegal detention for 7 days, was subjected to acts of torture and invasion of his right to privacy. The evidence discloses high handedness, unconstitutional, oppressive and arbitrary conduct on the part of the said agents of the respondent. Such conduct and circumstances call for an award of exemplary damages. Upon such evidence and circumstances, I award a sum of UGX 10,000,000/= (Uganda Shillings Ten Million Only) as exemplary damages against the respondent.

[51] Given the above findings and the provision under Section 27 of the Civil Procedure Act, the applicant is entitled to the costs of the application and the same are awarded to him.

[52] In all, therefore, the application by the applicant succeeds and is allowed with the following declarations and orders;

a) Declarations that;

(i) The actions by the respondent's officers or agents of detaining the applicant from 13th April 2020 to 20th April 2020 (a period of seven days) was illegal and violated the applicant's right to personal liberty guaranteed under Article 23(4) of the Constitution of the Republic of Uganda.

(ii) The actions by the respondents' officers or agents of beating, kicking, blindfolding, hanging and dragging him while hand and leg-cuffed, and incommunicado detention done against the applicant; amounted to torture, cruel, inhuman and degrading treatment and constituted breach of the applicant's right to human dignity and freedom from torture, cruel, inhuman and degrading treatment under Articles 24 and 44(a) of the Constitution of the Republic of Uganda.

(iii) The actions by the respondent's officers or agents of unlawfully searching or interfering with the applicant's person, home and other property without a search warrant infringed on the applicant's right to privacy of person and property contrary to Article 27(1)(a) and (2) of the Constitution of Uganda.

b) Orders for;

(i) Payment by the respondent of a sum of UGX 40,000,000/= (Uganda Shillings Forty Million only) as general damages to the applicant.

(ii) Payment by the respondent of a sum of UGX 10,000,000/= (Uganda Shillings Ten Million only) as exemplary damages to the applicant.

(iii) Payment by the respondent of the taxed costs of the application.

It is so ordered.

*Dated, signed and delivered by email this 23rd day of October, 2024.*

**Boniface Wamala JUDGE**