Kyaterekera Grace v Attorney General (Complaint UHRC 506 of 2004) [2023] UGHRC 8 (25 May 2023)

Full Case Text

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# THE REPUBLIC OF UGANDA UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT KAMPALA COMPLAINT NO. UHRC/506/2004

$\begin{smallmatrix}&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&$ **KYATEREKERA GRACE**

**COMPLAINANT**

AND

**RESPONDENT**

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

#### CORAM:

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- 1. HON. MARIAM WANGADYA - HON: COL (RTD) STEPHEN BASALIZA $2.$ - HON. OMARA APITTA LAMEX $3.$ - **HON: SHIFRAH LUKWAGO** $\boldsymbol{4}$ .

# **DECISION**

The Complainant alleges that on 5th October 2003 at 11:00a.m, he was arrested from Bukolooto Parents Primary School by the Officer in Charge of Kayunga Police Station. He was taken to Kayunga Police Station and detained. On 10th October 2003 he was taken to Katwe Police Station where he was detained until 16th October 2003 when he was taken to Criminal Investigations Directorate offices and interrogated. He was thereafter taken to Kampala Central Police $\mathbf{1}$

Station and detained until 8th November 2003 when he was taken back to the CID offices and released on Police bond.

It was the complainant's contention that his detention beyond 48 hours amounted to violation of his right to personal liberty, for which he holds the Attorney General vicariously liable.

The Respondent's representatives, Ms. Eva Kabundu, Ms. Josephine Kiyingi and Mr. Hilary Nathan Ebila proposed amicable settlement of the matter. However, this was abandoned by Ms. Josephine Kiyingi and it reverted to the Tribunal to hear the case on its merits.

# **Issues**

- Whether the Complainant's right to personal liberty was violated by State $1.$ Agents - Whether the Complainant merits any remedy $2.$

This matter was heard by former Commissioners; Ms. Grace Akello, and Dr. Katebalirwe Amooti Wa Irumba. It is from their records of proceedings that the tribunal derives its decision. The Respondent did not cross-examine the Complainant and his witnesses, nor adduce any evidence to rebut the Complainant's allegations. Even when the Tribunal ruled that the Respondent's side file written submissions, the same were not filed. This, however, did not

negate the Complainant's duty to prove his case against the respondent on a balance of probabilities.

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Whether the Complainant's right to personal liberty was violated $1.$ The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda 1995, as well as international and regional human rights instruments.

Article 23 (1), in particular, provides for circumstances under which a person can be deprived of the right to personal liberty and sub clause (c) specifically provides that a person's right to personal liberty may be deprived for the purpose of bringing that person before a court upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

Under article 23(4) (a) and (b) of the Constitution a person arrested or detained for the purpose of bringing him or her before a court or upon reasonable suspicion of his or her having committed a criminal offence under the laws of Uganda, shall if not earlier released, be brought to court as soon as possible but in any case not later than 48 hours from the time of his arrest. The same provision is also provided under Section 25 of the Police Act Cap 303.

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The African Charter on Human and People's Rights, 1986 provides under Article 6 that every individual shall have the right to liberty and to the security of person. The same further provides that no one may be deprived of his freedom except for reasons and conditions previously laid down by the law.

The International Covenant on Civil and Political Rights, 1966 under Article $9(1)$ provides that everyone has the right to liberty and security of person, and that no one shall be subjected to arbitrary arrest or detention.

Furthermore, Article 9(3) of the above Covenant provides that everyone arrested or detained on a criminal charge shall be brought promptly before a Judge and shall be entitled to trial within a reasonable time or to release.

CW1, Kyaterekera Grace testified that on 5th October, 2003 at 11 am while at Bukolooto Parents Primary School he was arrested by the Officer in Charge of Kayunga Police one Cox Epamaku on allegations of murder of a child. The child had been studying at Bukolooto Parents Primary School.

## He added that;

"I was taken on a "boda boda" to Kayunga Police Station and when we reached, I was handed over to one of the Police constables and detained in a cell. On 10th October, 2003, I was taken to Katwe Police Station and detained. In the cells, I found the head teacher of Bukolooto Parents Primary School on the same

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murder charges. On 16th October 2003 at 3:00p.m, I was called out of the cell and taken to the Criminal Investigations Offices by the O/C Criminal Investigations. I, together with the head teacher were interrogated for about 2 hours. The O/C Criminal Investigations told us that the deceased child had made a statement at Katwe Police Station and it was revealed that the head teacher Mr. Suleiman Seruga had defiled her and impregnated her. On the same day after interrogations, we were both taken to Kampala Central Police station where we were detained until 8th November 2003. On 8th November 2003, my father visited me and I was released on Police bond. I kept reporting and after seven days on 8th July 2004, the bond was cancelled and told to go home."

The lockup register from Kampala Central Police Station was tendered in evidence by Commission counsel as an exhibit and marked CXI. As per the lock up register Kyaterekera Grace was a murder suspect under No. SD 53/30/09/03 and released on bond on 8th November 2003.

CW2, Munialo Difas testified that in October 2003 on a date he could not recall, he received information that the Complainant had been arrested from his work place and detained at Kayunga Police Station. He went to Kayunga Police Station and talked to the complainant who narrated his story to him. Thereafter, he went to see the O/C Criminal Investigations to establish a way forward and he told him that the complainant was going to be transferred to Katwe Police Station. The following day, he went to Katwe Police Station to ascertain the

status of the complainant's file but he was informed that the investigations had not begun. That after three days, he went to the office of the Resident State Attorney who told him that he had not yet received the complainant's file. He then requested the State Attorney to check with the O/C Criminal Investigations, Katwe Police Station and when the O/C was contacted, he told him that they were still working on the file.

He further testified that after three $(3)$ days, he went back to the State attorney but his response was still negative. He went to the Directorate of Public Prosecutions and reported his complaint which was assigned to one Charles Kataratambi, a Senior State Attorney. On 8th November 2003, he stood surety for the complainant and he was granted police bond.

### CW3, Kityo Wakibuju testified that;

"On 5th October, 2003 while at Bukolooto Parents Primary School having a school meeting, the complainant was arrested by a policeman attached to Kayunga Police Station on allegations of murder of a girl. He was taken to Kayunga Police Station where he was detained until 10th October, 2003 when he was transferred to Katwe Police Station. I used to take for the complainant food every day; both lunch and supper. One time, when I went to Katwe Police Station, I was told that the complainant's file had been taken to CID headquarters. After about 5 days, I was invited to the CID headquarters to stand surety for the complainant."

The complainant, consistently testified that he was arrested and detained from 5th October, 2003 to 10th October, 2003 at Kayunga Police Station, from 10th October, 2003 to 16th October, 2003 at Katwe Police Station, and from 16th October, 2003 to 8th November, 2003 at Kampala Central Police Station when he was released on bond. The complainant's evidence was corroborated by that of *CW2* and *CW3* who visited him while in detention and stood for him surety.

The complainant's evidence was further corroborated by the lock up register and release on bond form issued by Kampala Central Police Station which showed that he was a murder suspect vide File No. SD53/30/09/03 who had been in Police custody. The Respondent's Counsel did not cross-examine the complainant and his witnesses even when the Tribunal granted the Respondent's side the opportunity to do so. In addition, Respondent's Counsel did not present any defence to rebut the complainant's prosecution evidence.

The Tribunal therefore finds on a balance of probabilities that the complainant's right to personal liberty was violated by State Agents. They were acting in the course of their employment as state agents. The respondent is vicariously liable for their actions.

#### **Whether the Complainant merits any remedy** $2.$

The Constitution of the Republic of Uganda under Article 53(2) (b) and (c) provides that;

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"The Commission may, if satisfied that there has been an infringement of a human right or freedom, order the payment of compensation or any other legal remedy or redress."

The complainant was detained for a total of 35 days. Taking into consideration the 48 hours within which suspects can lawfully be detained, the complainant was unlawfully detained for 33 days by the aforementioned State agents.

In assessing damages, this tribunal is cognizant of the fact that the complainant was arrested and detained for complicity in the murder of a school girl.

This matter also involved defilement of the victim before her murder and thus required thorough investigations which could not be concluded within 48 hours. Considering the above factors, the tribunal deems a sum of $UGX$ 6,000,000= (Uganda Shillings Six million only) as adequate compensation for violation of the complainant's right to personal liberty.

#### The tribunal therefore orders as follows

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- The complaint is allowed. 1. - $2.$ The respondent is ordered to pay to the complainant, a sum of UGX $6,000,000 =$ (Uganda Shillings Six million only) as general damages for violation of his right to personal liberty.

- The general damages shall attract Interest at 5% from the date of this $3.$ decision until payment in full. - Each party shall bear their own costs. $4.$ - Either party not satisfied with the decision of the Tribunal may appeal to $5.$ the High Court of Uganda within thirty (30) days from the date of this decision.

DATED at KAMPALA this...... $\mathcal{A}$ day of ..... May ..............................

MUTONVI HON. MARIAM WANGADYA **CHAIRPERSON** Olon Dalize HON. COL (RTD) STEPHEN BASALIZA **MEMBER** HON. OMARA APITTA LAMEX **MEMBER** HON. SHIFRAH LUKWAGO **MEMBER**

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