Karuhanga v Attorney General (compliant no. 36/2009) [2022] UGHRC 17 (17 January 2022)

Full Case Text

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# **THE REPUBLIC OF UGANDA**

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

### **HOLDEN AT FORTPORTAL**

# **COMPLAINT NO: UHRC/ FPT/36/2009**

**KARUHANGA JAMES ::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

#### **AND**

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

# **BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO**

## **DECISION**

The Complainant (C), Karuhanga James alleges that on 10th November 2009, he was arrested by Police Officers attached to Rwebisengo Police Post on the allegation of theft of cows belonging to Mr. Beeza. That he was taken and detained at the Police Post for one week and 18th November 2009, he was transferred to Bundibugyo Police Station where he was further detained until 11th December 2009 when he was released on Police bond.

C therefore prayed to the Tribunal to order the Respondent (R) to pay him compensation for the violation of his right to personal liberty by State agents.

R through their representative counsel (RC) Lubowa Racheal denied liability and stated that R's side intended to challenge C's allegation. R was also on other occasions throughout the hearing of this complaint represented by Mr. Ndibarema Grace Mwebaze, Ms. Betty Karungi Gafabusa, Ms. Tusiime Anne, Ms. Asiimwe Phiona Bamanya, Mr. Kawalya Ronald and Mr. Rwanama Hannington who pursued the matter for amicable settlement.

In this regard, C's complaint was basically consisting of three issues and that is, the violation of his right to personal liberty and whether R was liable and whether C was entitled to any remedy, later on during the hearing that took place on 10th April 2014, RC Lubowa Racheal offered to settle the complaint with C amicably but considering only the aforementioned first issue on personal liberty on condition that if amicable settlement failed, Tribunal hearing would continue. Accordingly, Cs wrote a proposal for settlement of his complaint amounting to UGX 8,000,000= which was brought to the attention of RC Lubowa Racheal on 29th October 2014. The latter in turn proposed a reduction of the settlement proposal to UGX 4,000,000 on ground that the proposal was excessive and that a lower rate would be easier to achieve on her side. C in turn agreed to the reduction of the final settlement proposal to be UGX 4,000,000=.

Therefore, I shall take into account this acceptance by C to be paid UGX 4,000,000= as final settlement of his complaint along with other factors that I deem relevant for final disposition of this complaint.

Accordingly, I have also decided to focus my assessment of the facts of this complaint mainly on the issue of personal liberty, which was singled out by R's side for consideration, in order to seek to determine whether the UGX 4,000,000= that was offered by R's side and accepted by C as final settlement of his complaint, was fair given the fact that C's initial proposal was UGX. 8,000,000= R's side offered to consider only one of the two issues that were raised by C and yet, C in his written proposal for settlement of his complaint still stated both the aforementioned two issues for which he claimed to be paid UGX 10,000,000=, and R's side took their decision to offer UGX 5,000,000= to C well aware that C's proposal sought compensation for both issues, although he had earlier on accepted R's offer to settle his complaint on the basis of consideration of only the issue of personal liberty.

Therefore, my assessment of the facts of the complaint shall be focusing only on the following three issues.

# **Issues**

- 1. Whether C's right to personal liberty was violated by State Agents. - 2. Whether R (Attorney General) is liable - 3. Whether C is entitled to any remedies.

Nevertheless, I regard it to be necessary and very important for me to also take into consideration the overly repeated promises by R's side to settle the matter amicably but in vain, and the long duration of over seven years that this process took without C benefiting from the promised settlement in the end. I shall therefore also take this fact into consideration as I evaluate the justification and fairness of the quantum of the compensation that R's side offered to C.

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

# **Tribunal hearings.**

The first Tribunal hearing was held on 10th April, 2014. C was present while R was represented by Ms. Lubowa Rachel. C, Karuhanga James testified that he was 39 years old and a cattle keeper. That on 10th November 2009 at around 10:00a.m, while he was at Rwamabare Trading center, he was arrested by a uniformed Police Officer attached to Rwebisengo Police Post on the allegation of theft of cattle. That he was taken to the Police Post and detained for one week.

That he was thereafter transferred to Bundibugyo Police Station and detained for three weeks. That on 11th December, 2009 he was released on Police bond. He added that he was told to keep reporting at Bundibugyo Police Station and he reported there three times. That when he went back to the Police Station on the fourth time on 25th January 2009, he was told not to go back until he was called to come. That ever since that time, he has never been called back.

The Release on Police Bond was admitted with the consent of RC as CXI.

The certified copy of the lock up register was admitted with the consent of RC as C's CX 3.

During cross-examination, C clarified that he did not earn a salary per month but that the person he was working for gave him a cow every after one year. That he was working for one person. That in addition to the cow given to him, was always given a 20 liter Jerri can of milk every day. That payment for his work was in kind and not in cash. That for the time /days he spent in unlawful detention should be multiplied with 201iters per day. He clarified. that his employer did not sell milk but it was himself who was selling the milk given to him. That he would earn 20,000= daily for the 20 liters of milk. That he wanted to be compensated for unlawful detention, pain and loss of income.

During this hearing, RC suggested to explore amicable settlement of the matter with C on condition that when this option failed, Tribunal hearing would continue. Accordingly, the Tribunal ordered that C writes a proposal for settlement and submits it to RC but avoids making unreasonable demands which would make it difficult to settle, parties were allowed a period of two months within which to consult, negotiate and reach an agreement.

The second Tribunal hearing was held on 29th October 2014. C was present. R was represented by Mr. Ndibarema Grace Mwebaze. Counsel for the Commission (CC) prayed to the Tribunal to submit to tender in the certified copy of the lock up register from Bundibugyo Police Station. The Tribunal accordingly admitted the same as CX2. CC further informed the Tribunal that C had made/written a proposal for final settlement of the matter of UGX. 8,000,000=. RC representing R on that day submitted that the proposal was excessive and prayed that it to be reduced to UGX. 4,000,000/= which would make it easy for it to be paid by Solicitor General. C in response to RC's prayer, agreed to the reduction of the proposal. The Tribunal therefore ordered that the proposal on file be edited and submitted to RC who would give an update on the progress of the proposal.

During the third Tribunal hearing held on 25th November 2014, C was present while R was represented by Ms. Betty Karungi Gafabusa. CC submitted to the Tribunal that at the last hearing, RC undertook the responsibility to communicate C's written proposal for settlement to the Solicitor General and therefore, since R was represented, RC gives the Tribunal an update on the same. RC in response, submitted to the Tribunal that counsel in personal conduct of the matter had not yet forwarded the file to the Solicitor General as required because the time given by the Tribunal was not adequate to enable her compile the necessary documents. RC in the 2nd Tribunal hearing did not object to the time given by Tribunal. She further prayed for more time (up to 10th February 2015) be granted to enable them settle the matter because they were still interested in the settlement, and that the matter could be set down for hearing if no action/progress was made in that respect. The Tribunal noted that during the hearing of 29th October 2014, it informed RC Ndibarema Grace that R's side at Headquarters had a focal person for all case pending amicable settlement so the Tribunal was not sure if counsel Ndibarema had shared the information with the rest of counsel. The Tribunal allowed the prayer for adjournment up the end of February 2015 but emphasized that by the end of that period at least there should be reports on the progress of the matter from the Solicitor General.

During the fourth Tribunal hearing held on 17th March, 2015, C was present while R's side was represented by Ms. Tusiime Anne. The matter came up for an update on amicable settlement. RC submitted to the Tribunal that her supervisor had requested the Tribunal to allow them two weeks to give a response regarding the proposal. The Tribunal allowed RC's prayer adding that the Ministry of Justice and Constitutional Affairs had enrolled a system to utilize Alternative Dispute Resolution of complaints involving small claims because Complainants were dying before realizing their compensation.

On 17th June 2015, the fifth Tribunal hearing was held. C was present. R was represented by Ms. Asiimwe Phiona Bamanya. CC submitted to the Tribunal that the matter had been adjourned for two weeks as prayed by RC but the Commission had not yet obtained a response. RC submitted to the Tribunal that their Regional Office discussed complaints involving less than ten million or less to be compiled so that they could seek consent from the headquarters to release funds so that the Regional office not only pays Complainants compensation locally but to also expedite the process and avoid unnecessary bureaucracy and a response was being awaited. She therefore prayed that the Tribunal adjourns the matter to enable them pursue the said arrangements. The Tribunal commended RC for the efforts being made to settle the matter and ordered that CC prepare a consent order to be signed by C and submit it to RC in order to facilitate speedy consultations and settlement of the complaint, forward the consent order to the Presiding Commissioner for signature and to the Registrar for sealing. The matter was therefore adjourned for two months to allow RC finalize with consultations.

On 28th March 2017, the 6th Tribunal hearing was held. C was absent. R was represented by Mr. Kawalya Ronald. CC submitted to the Tribunal that orders given by the Tribunal hearing had been complied with. That for that matter, consent orders were prepared and given to RC who was also updated about the hearing as of that day before hand. RC submitted to the Tribunal that he had the complaint file but the copy of the consent order was not there. He submitted that probably his colleague counsel Grace Ndibarema forwarded it to their headquarters or even the order was never placed on the file/ filed. The Tribunal observed that it had been assured at the last hearing that arrangements had been made by R's office for the consent order to be forwarded to their headquarters so that the matter is settled expeditiously given that the

compensation expected was of little money. RC prayed to the Tribunal to grant them one more adjournment based on a promise that he would seriously follow up the matter. CC submitted to the Tribunal that he would follow up with R's side in order to establish how far they had gone with signing the consent order. The Tribunal accordingly adjourned the matter sine die.

The Tribunal held the 7th hearing on 14th November 2017. C was present while R was represented by Mr. Rwamwana Hannington. The Tribunal requested RC to update the Tribunal regarding the amicable settlement. RC submitted that he did not have the complaint file, however he still held a strong opinion that since there was overwhelming evidence on file and the compensation asked for by C was below lOmillion, the matter could be settled. RC therefore prayed that the Tribunal grants them an adjournment to pursue the settlement. The Tribunal accordingly encouraged the RC's approach to the settlement of this matter and the adjournment was granted.

On 11 May 2018 the Tribunal held its 8th hearing of the matter. C was present while R was represented by Mr. Rwamwana Hannington. The matter came up again for an update on amicable settlement. RC submitted to the Tribunal that he prepared an opinion and forwarded the same to their headquarters in Kampala but their office in Fort portal had not obtained a response yet. He therefore prayed for an adjournment to enable them follow up the matter. CC submitted that she did not object to RC's prayer, so the Tribunal accordingly adjourned the matter sine die.

At the last (9th) Tribunal hearing was held on 4th February 2019. C was present. R's side was represented by Mr. Rwamwana Hannington who informed the Tribunal that their office had not obtained a response from the Solicitor General regarding the legal opinion he prepared. RC further submitted that he wanted to drop and also prayed for one and a half months within which to file written submissions. Accordingly, the Tribunal granted the prayer made by RC and added that it would be after the submissions are written that it would make a decision.

I therefore want to stress that although R offered to settle the matter amicably, the same never yielded positive results. I have to emphasize that from the record of the Proceedings, it is clear that RC's Grace Ndibarema and Rwamwana Hannington submitted C's proposal for settlement to their headquarters in Kampala which was one of the explicit responses undertaken by R. This also expressly indicated that R actually admitted the allegation suggested by RC during the 1st hearing because this was a complaint on the violation of C's right to personal liberty.

I further note that this complaint has taken a total of 13 years, eight of which it has been before the Tribunal and about 6 years of which were allowed to R to amicably settle the complaint with C. On several Tribunal hearings RCs' appeared with no update on the settlement while on other times, they only gave seemingly convincing promises to have the complaint settled. It is therefore of no doubt that R's initiative to settle that matter was a clear indication to the Tribunal of their side having admitted liability for the actions of the Policemen attached to Rwebisengo Police Post and Bundibugyo Police Station contrary to Article 23 (4)( b) of the 1995 Constitution of the Republic of Uganda.

Before I delve into how much compensation is due to C, I must emphasize one of the Tribunal's juridical role provided under Articles 50(2) and 53(2) (b and c) ofthe 1995 Constitution which provides for the right to remedywhere a human rights violation has been proved. I am also of the view that justice in this case has been long overdue considering the fact that evidence adduced by C against R was very clear and overwhelming. On this premise, in order not to delay this complaint any further, let me now assess the quantum of damages to be awarded to C in respect to the violation of his right to personal liberty.

In that regard, I am taking into consideration the principle that was laid down in the case of **MATIYA BYABALEMA AND OTHERS VS UGANDA TRANSPORT COMPANY SCCA 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.

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

As it was already stated above, according to the copy of the lock up register from Rwebisengo Police Post reveals that C was arrested and detained on 10th November, 2009 up to 18th November, 2009 (six days) having removed the 48 hours equivalent to two days and the day he was transferred to Bundibugyo Police station, we are left with 6 days of illegal detention at Rwebisengo Police Post.

The lock up register from Bundibugyo Police Station reveals that the complainant was booked in on 18th November 2009 on allegations of cattle stealing and released on bond on 11th December, 2009. The release on bond indicates the complainant was released on 11th December 2009 and told to report back on 18th December, 2009. That means he was detained for a total of 23 days not including the day he was released contrary to Article 23(4) (b) of the Constitution which expressly provides that:

A person arrested or detained on suspicion of him 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 forty-eight hours from the time of his or her arrest.

Accordingly, I have already mentioned that C was detained for six and twenty three days respectively at both Rwebisengo Police Post and Bundibugyo Police

Station, giving us a total of 29 days. In the case of **CHRIS KAMYA AND ATTORNEY GENERAL, UHRR [2008-2011],** the Complainant was illegally detained for 30 days and he was awarded UGX 16,000,000= as general damages. This quantum of the damages that were ordered to be paid in this precedent case provides one with some useful guidance.

Accordingly, it was resolved under Issue 1 above that C's right to personal liberty was violated by State Agents. C therefore deserves to be compensated accordingly. In order to determine suitable quantum of the damages to be awarded for the violation under consideration, I shall also consider the following important elements:

a) The specific nature of the violation already proved to have been committed by State agents.

b) The constitutional status of the specific right that has been violated: whether positive and subject to limitation under the relevant laws, or absolute and non-derogable.

c) The fact that the Complainant was acquitted by court after having been found to have not committed the alleged crime for which he had been arrested by Police.

d) Previous awards in cases or complaints similar to the instant one.

e) The value of the money to be awarded for damages, taking into account its purchasing power under the current national economic conditions; as well as the time lag from the time when the violation was committed up to the time of making this decision; and

f) The capacity of the Respondent to pay the awarded damages, taking into account the current national economic conditions and overall government revenue status

Taking into consideration all the above factors, and adopting the methodology applied in earlier cases in awarding victims of violations similar to this one for instance in the case of **Agaba Bernard Vs. Attorney General UHRC (2008- 2011)** Hon. 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 ofthe Tribunal to award Ug. Shs 2,000,000=( Uganda Shillings Two Million) for every seven (7) days of unlawful confinement.

Ug. Shs.2, 000,000 (Uganda Shillings Two million) divided by 7 (seven) days gives us Ug. Shs.300, 000 (Three hundred Thousand shillings) per each day of illegal detention. That practice has not changed. I shall therefore award the Complainant Eight Million Uganda Shillings for the total of 29 days spent in illegal at detention at both Rwebisengo Police Post and Bundibugyo Police Stations as adequate compensation for the violation of C's right to personal liberty. In further consideration, I take cognizance of the fact that this case is of 2009 and given the passage of time and in considering the current value of money, I am further awarding C an additional UGX 2,000,000= ( Uganda Shillings, Two million) making the total amount due to C, UGX 9,420,000,= (Uganda Shillings Ten million) .

Therefore, I shall order R to pay to C a sum of UGX 9,420,000= (Uganda Shillings Nine million, four hundred, twenty thousand only) as general damages in compensation for the violation of his right to personal liberty for a total of 29 days of illegal detention.

## **b) Loss of income**

C testified during cross-examination that he was working as a herd's man and paid in kind. He also stressed that everyday his employer gave him a twenty liter jerry can of milk which he sold at UGX 20,000=. This therefore implies that for the 29 days C was detained he was denied 29 jerry cans of milk of UGX 20,000 each which gives a total of UGX 580,000=.

In this instant case, there was a total lack of evidence, however all I am relying on to substantiate loss ofincome generated by the liters of milk given to C by his employer are his averments. Although it is true that the same were never proved by C, R never at any one point controverted his assertions. R also submitted to the Tribunal that if amicable settlement failed, the matter reverts back for hearing and as I have already mentioned in this decision, the passage of time especially brought about by R's frequent promises to settle the matter implied that he had accepted all C's averments / claims. Although it is a requirement for this kind of claim to be strictly proved, it is not necessary that strict proof be proved by documentary evidence. What C would have probably done was present his evidence through a witness (employer) at hearing but as I have already mentioned, this was not possible because of R's side had accepted to settle the matter with C. The Tribunal cannot therefore watch an injustice regarding C's loss of income not be adjudicated on.

As I have already mentioned under this sub section, C lost a total of UGX 580,000= returns from his milk sales.

Therefore, in respect to this claim, I shall order R to pay tov C a total sum of UGX 10,000,000= (Uganda Shillings Ten million only) as general damages in compensation for the violation of his right to personal liberty for a total of 29 days of illegal detention and loss of income.

I therefore order as follows.

## **ORDERS:-**

- 1. The complaint is allowed wholly. - 2. R (Attorney General) is ordered to pay to C, Karuhanga James a total sum of UGX 10,000,000= (Uganda Shillings Ten million only) for the violation of:

a) Right to personal liberty and loss of income 10,000,000/=

**TOTAL 10,000,000/ =**

- 3. Each party shall bear their own costs. - 4. Either party not satisfied with the decision of the Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date of this decision.

So it is ordered.

**DATED AT FORTPORTAL ON THIS .. J.?. DAY OF 2022.**

**SHIFRAH LUKWAGO PRESIDING COMMISSIONER**