Kamaria Naluzze v Attorney General (Complaint UHRC 223 of 2010) [2018] UGHRC 23 (9 April 2018)


# THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

## HOLDEN AT KAMPALA

## COMPLAINT NO: UHRC/223/2010

KAMARIA NALUZZZE::::::::::::::::::::::::::::::::::

And

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

#### (BEFORE COMMISSIONER STEPHEN BASALIZA)

#### **DECISION**

The Complainant alleges that her right to personal liberty was violated by state agents. In particular, she alleges that on 12<sup>th</sup> November 2010 she was arrested from her shop at Kibuli by UPDF soldiers attached to Joint Anti-terrorism Task Force (JATT) and detained for three weeks before she was released on the 1<sup>st</sup> December 2010. The Complainant prayed for compensation for the violation of his rights.

The Respondent as represented by Ms. Clare Kukundakwe denied the allegations.

#### **Issues:**

On the basis of the allegations made, the Tribunal was expected to determine the following issues:

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- 1. Whether the Complainant's right to personal liberty was violated by State agents. - 2. Whether the Respondent (Attorney General) is liable for the violations against the Complainant's rights - 3. Whether the Complainant is entitled to any remedies.

Before I determine the above-mentioned issues, I note that this matter was heard before Commissioner Akurut Violet and I have scrutinized the proceedings of the same from which I have arrived to this decision.

I can now turn to the issues mentioned earlier on.

#### Issue No. $1$ : Whether the Complainant's right to personal liberty was violated by state agents.

The right to personal liberty is a positive right protected by human rights law at International and Regional (African) levels as well as the Constitution of Uganda of 1995.

The Universal Declaration of Human Rights (UDHR), 1948 protects this right under Article 3, where it states that:

Everyone has the right to life, <u>liberty</u> and security of person:

No one shall be subjected to arbitrary arrest, detention or exile. (Underlining added to highlight the relevant right).

The International Covenant on Civil and Political Rights, 1976 which Uganda signed and ratified, also guarantees the same right under Article 9, clarifying that the liberty and security of an individual can only be curtailed on the grounds and procedures established by law.

The African Charter on Human and Peoples' Rights (ACHPR), 1997 also promotes and protects the aforementioned right, stating that "every individual shall have the right to liberty and to security of his person", and that "no one may be arbitrarily arrested or detained ...except for reasons and conditions previously laid down by law".

The Constitution of Uganda under Article 23 guarantees the right of personal liberty as a positive right but which is not absolute, as it may be curtailed under the circumstances that are provided for under Clause 23 (1) of the same Constitution. The Constitution specifically requires that any "person arrested or detained upon reasonable suspicion of 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 forty-eight hours from the time of his or her detention". In connection with this Constitutional requirement therefore, Article221 (1) of the Constitution which states that it shall be the duty of UPDF and any other armed force established in Uganda, the Uganda Police Force and any other police force, the Uganda Prison Service, all intelligence services and the national security council to observe and respect human rights and freedoms in the performance of their functions.

It is against this legal framework that I now want to determine the issue under consideration and will take the testimonies of the relevant parties under consideration.

The Complainant testified that on the 12<sup>th</sup> November 2010, she was arrested from her shop at Kibuli by Uganda People's Defense Forces (UPDF) soldiers dressed in civilian clothing who identified themselves with a headed document which showed that they were attached to Joint Anti-terrorism Task Force (JATT) and that she was taken and detained at the JATT offices at Kololo on allegations of terrorism. That she was arrested in the presence of one Kalanzi Isma who was a boda boda cyclist operating in front of her shop. That before she was arrested, she was interrogated by one of the officers who identified himself as Namara in regard to her children's whereabouts specifically about her daughter Hilaal Twhwaibha who at the time was studying from Egypt and

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insinuated that she had travelled out of the country dubiously and had connections to rebel activities. The Complainant further testified that the officers insisted that she gave them wrong information and that she then allowed to go with them to JATT offices because they claimed that there was some other information concerning her daughter that she needed to clarify. That she asked Kalanzi Isma to inform her relatives that she was being taken to JATT offices and then she entered the car with the officers where she was taken to JATT offices at Kololo and from there she learnt the other officer's name as Medi. That upon reaching the reception of the said offices, a certain man ordered her to undress where that she only removed the headscarf and that the same man ordered another officer to take her and beat her. That when she was taken outside, she was ordered to sit under a tree although she was not beaten. She further stated that on the following day, Officer Namara called her to his office and interrogated her further about the whereabouts of her children and after answering his questions that she requested and was denied to make a phone call to contact her relatives to inform them of her whereabouts. That she was then informed that she was an ADF rebel collaborator and she stated further on a Wednesday, she taken to an unknown place to her where she was interrogated and beaten and that she was then taken back to JATT offices. She further stated that every Wednesday and Thursday of the time she was detained, she would be taken to the Chieftaincy of Military Intelligence (CMI) where her statement was recorded. That she was released after three weeks.

Kalanzi Ishma, the Complainant's witness (CW1) testified before this tribunal and stated that on a date he could not recall, he saw un-identified men enter the complainant's shop and the Complainant informed that the men were mishandling her phone and that the said un identified men asked the complainant to close her shop which she did and handed him keys and they drove away with the complainant away in a saloon car. That he went and informed the complainant's relatives of her arrest and that three days after

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investigative journalists from Bukedde newsroom approached him and took his statement and the complainant's daughter a one Nantume asked him to take her to Kololo at JATT offices where she was refused entry by the officers and that he next saw the complainant after about two weeks.

**Nantume Zuena**, the Complainant's second witness (CW2) also testified before this Tribunal that on a date she could not recall but in 2010, she was informed by **CW1** that the Complainant had been arrested by **JATT** operatives and that the **CW1** transported her to the JATT offices which were located at Kololo. That when she reached JATT offices, she was denied entry by security official and who also denied any knowledge of the complainant being detained at these offices. That the complainant was released after three weeks; she received a phone call from the Complainant who informed her that she had been released and she found the complainant at Kibuli petrol station in the company of three men whom she paid Uganda Shillings Ninety thousand shillings (UGX. 90,000).

The Complainant also tendered in documentary evidence in form of a Newspaper Article by Ahmed Mukiibi, published in the local paper Bukedde of 1<sup>st</sup> December 2010. This document was accepted by the Tribunal as identification document 1.

The Respondent cross examined the complainant and her witnesses but never called any witnesses to rebut the Complainant's evidence, I am left with no other option except to conclude that the Respondent did voluntarily and partially waive their right of defense in this respect of the matter.

Upon cross examination, Counsel for the respondent challenged the complainant's evidence with regard to identification of the people who effected the arrest and her claim that she was detained at JATT offices.

At this juncture I take note that the Evidence Act Cap.6 provides under Part IV, section 101 $(1)$ as follows:

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

I also take into account that Section 102 of the same Act adds that:

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

This was restated by this tribunal in the matter of **Boaz Abungu Wanjala vs.** Registered Trustees of Mengo Hospital UHRC/620/1999 in which it was stated that the burden of proof lies on the claimant to prove his allegation. The Uganda Human Rights Commission (Procedure) Rules under Rule 23(1) provides that the standard of such proof should be on the balance of probabilities.

The Complainant testified that she was arrested by un identified men who presented her a paper which was inscribed with the words JATT. That she was detained at their offices for three weeks save for Wednesdays and Thursdays when she would be taken to CMI. Normally, the Complainant's evidence to prove that her right to personal liberty was violated, would include either, oral testimonies of eye witnesses (of her arrest and detention) or documentary evidence in form of the Lock-up Register of the relevant place of detention, the Police Release Bond or the Court Release Order or both.

The Complainant did tender in for identification, a newspaper article which I have scrutinized and which stated that the complainant had been arrested by JATT operatives and was under investigations of terrorism. The article further stated that the Spokesman then of UPDF Felix Kulaigye had informed the Media house (Bukedde) that the Complainant's matter was being handled by Joint anti-Terrorism Task Force (JATT). I also note that **CW2** informed this Tribunal that she approached the media house and narrated the complainant's ordeal which led to this article. **CW1** also informed this tribunal that the day

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after the complainant went with the unidentified men, he was approached by journalists from Bukedde and narrated what happened to the Complainant. I will not heavily rely on the newspaper article which evidence would be mostly hearsay but I will take judicial notice of the same in as far as the arrest and detention of the complainant by JATT officers and the fact that the timeline of the newspaper article is consistent with the time around which the complainant was detained and was reported missing.

I have also considered the complainant's witnesses testimonies; although the two Complainant's witnesses (Kalanzi Ishma (**CW1**) and Nantume Zuena **CW2**) could not remember the exact date when the Complainant was arrested and first detained, they testified that the arrest took place in November 2010. CW1 testified that the complainant went with the unidentified men and he saw her after two weeks. Upon cross examination, CW1 changed the timeline and stated that he saw the Complainant after three weeks. Although CW1 did not see or have any contact with the complainant while she was in the alleged detention, he corroborated the complainant's evidence in as far as the complainant being arrested and taken away in a salon car. CW2 also stated that she was informed by **CW1** that the complainant had been taken by unidentified men in a saloon car and that she attempted to access JATT offices to check on the complainant where she was denied by the officers stationed there. I note that that CW2 testified that she reported the matter at Kansanga Police Station where she was referred to JATT offices, the same offices where she was denied access. The respondent as already noted did not present any witnesses nor file any submissions or explain why the respondent's servants would deny access to a concerned citizen who had a valid claim that her aunt was held at their offices. CW2 further testified that after three weeks she saw the complainant at Kibuli Petrol station in the company of three unidentified men who demanded for one million Uganda shillings whom she paid Ninety thousand Uganda shillings. This also corroborates the complainant's evidence

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in regard to the timeline within which the complainant was detained which is three weeks.

The tribunal also has taken into consideration CW2's testimony that she was denied access to JATT offices when the complainant was arrested and in order to reach to a logical conclusion of the matter, I have decided to refer to the findings of investigations carried out by the Uganda Human Rights Commission investigators which indicate that during the course of their investigations conducted investigations on 30<sup>th</sup> January 2012 and 3<sup>rd</sup> February 2012, the team was also denied access into the same offices which has led this tribunal to conclude that there is a high probability that the complainant was detained at JATT offices illegally. The respondent was given ample time to present their defence which it refused, neglected or failed to, I therefore find that on the balance of probabilities, I find that the evidence available indicates that the Complainant right to personal liberty was violated.

Since the operation was carried out by security operatives including the Anti-Terrorism unit, I find the Attorney General vicariously liable for the violation of the Complainant's right to liberty.

### Whether the Respondent is liable.

Findings on the above issue are to the effect that there was a violation of the Complainant's right contrary to international, regional and national provisions.

According to section 3 of the Government proceedings Act cap 77 the government is liable for all torts committed by its servants or agents. In addition, section 10 of the same provides that all civil action against the government shall be instituted against the attorney general, which is also highlighted under Article 119 A (4) of the Constitution of the Republic of Uganda.

In Lister Vs. Hesley Hall Ltd (2001) UKHL 22, the House of Lords observed that the principle that the master is liable whether the act is authorized or an unauthorized act done in a wrongful manner.

From the above analysis, the Respondent is vicariously liable for the actions of Joint Anti-Terrorism Task force officials since their actions were carried out in an official capacity.

# 3. Whether the complainant is entitled to any remedy.

After the finding that the Complainant's right to personal liberty was violated by the Respondent's agents, I will consider Article 53(2) (b) and (c) of the Constitution of the Republic of Uganda 1995, which provides that the Commission may if satisfied that there has been an infringement of a human right..., order that compensation be paid or any other remedy or redress.

In addition, Article 23(7) provides that a person unlawfully arrested, restricted or detained by any other person or authority shall be entitled to compensation from that other person or authority whether it is the State or any agency of the State or other person or authority.

Further consideration is given to the case of **Christopher Ssajabi Nsereko Vs** AG UHRC No. 112/99, in which Commissioner F. M. Wangadya observed that human rights and freedoms would serve no purpose if their violation did not attract redress to the victims.

In the instant case, the Complainant was unlawfully detained at JATT for a period of three weeks and in determining the final award, the tribunal will put into consideration that the complainant was denied access to her relatives contrary to Article 23(5) (a) which is to the effect that a person arrested or detained, the next of kin of that person shall, at the request of that person , shall be informed as soon as practicable of the restriction or detention; It is the complainant's claim that she was denied access to her next of kin and in light of the documentary evidence presented, it's clear that the respondent's

agents acted with impunity to an extent that even upon her release, the officers were still trying to extort the complainant's family of money. I will also take into consideration of the the time that has passed and current value of money.

I therefore find a sum of UGX 7,500,000/= (Seven million five hundred thousand Uganda Shillings) as adequate compensation for the complainant. I so award.

# **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (the Respondent) is ordered to pay to the Complainant Kamaria Naluzze, a sum of Ug. Shs 7, 500,000/= (Seven million five hundred thousand Uganda Shillings) as general damages for the violation of his right to personal liberty. - 3. The said amount of Ug. Shs $7,500,000/$ = only (Seven million five hundred thousand Uganda Shillings) will carry interest at rate of 10% per annum from the date of this decision until payment in full. - 4. Each party shall bear their own costs.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date of this decision.

Dated at Kampala this .................................... HON. COMMISSIONER STEPHEN BASALIZA PRESIDING COMMISSIONER

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