Kyeyune Emma v Attorney General (Complaint UHRC 44 of 2011) [2016] UGHRC 14 (1 December 2016)

Full Case Text

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#### THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

#### **HOLDEN AT KAMPALA**

#### COMPLAINT NO: UHRC/44/2011

KYEYUNE EMMA::::::::::::::::::::::::::::::::::

#### **AND**

## ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## [BEFORE HONOURABLE COMMISSIONER MEDDIE B. MULUMBA]

#### **DECISION**

The Complainant Kyeyune Emma, lodged his complaint with the Uganda Human Rights Commission alleging that on the2nd July2010, his right to personal liberty was violated by the Respondent's agents. That on the fateful day, while he was guarding private property at Kyanja he was arrested by policemen attached to Kiira Road Police Station on allegations of threatening violence where he spent one week in detention at until the 9th July 2010 where he was arraigned in court. The Complainant claims compensation.

#### Issues:

The Tribunal was required to determine the following issues in order to make a decision on the allegations made:

$\mathbf{1}$

- 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 right. - 3. Whether the Complainant is entitled to any remedy.

Before I resolve the above issues, I note that the Respondent did not appear to defend the allegations against him nor did it present any reasonable excuse for nonappearance. Evidence of proof of service summoning the Respondent to attend the hearing was presented before this Tribunal and hence this matter was heard exparte in accordance to Rule 18(1) of the UHRC rules 1998.

I now turn to resolve the issues mentioned before this Tribunal.

# Issue no. 1: Whether the Complainant's right to personal liberty was violated by State agents.

I shall seek to determine this issue within the context of the relevant legal framework established for the guarantee and protection of peoples' right to personal liberty.

The right to personal liberty is guaranteed and protected Internationally first by Article 3 of the Universal Declaration of Human Rights (UDHR) of 1948, which guarantees everyone's right to life, liberty and security of person, and also prohibits arbitrary arrest and detention of anyone except where the established law allows this to be done.

Similarly, Article 9 of the International Covenant on Civil and Political Rights, 1976 which Uganda has signed and ratified, prohibits arbitrary arrest and detention, or any limitation on individuals' right to personal liberty, unless this is done on grounds and procedures established by law.

At the African Regional level, the African Charter on Human and Peoples' **Rights** of 1997 under Article 6 guarantees for "every individual the right to liberty and to security of person' and reiterates that this right can only be constrained "for reasons and conditions previously laid down by law".

Here in Uganda, the Constitution of 1995 under Article 23 guarantees and protects the right to personal liberty as a positive right for everybody, which can only be limited under the circumstances that are specified under Article 23 (1) of the same Constitution. Article 23(4) provides that anyone who is arrested or detained on suspicion of having committed or about to commit an offence under the laws of this country, must be released on Police Bond or taken to Court as soon as possible but in both cases, not later than forty-eight hours from the time of his or her arrest.. This legal requirement is again specifically and explicitly stated in Section 25 (1) of the Police Act Cap. $303$ .

The key question I must now seek to answer is whether the Police officers actually arrested and detained Kyeyune Emma illegally in breach of the provisions of the Police Act and the Constitution of Uganda, and also ignored the provisions in the International and Regional (African) human rights legal instruments. The testimony of the Complainant and his witnesses are relevant in determining these issues.

The Complainant testified that on the 2nd July 2010 while he was on night duty guarding private property at Kyanja, he was arrested by police officers attached to Kiira Road Police Station on allegations of threatening violence where he was detained until 9th July 2010.

The Complainant presented to the tribunal documentary evidence inform of a certified Lock up register of Kiira Road Police Station that reflected that the

complainant was detained on the 2nd July 2010until the 9th July 2010 on allegations of threatening violence. This document was accepted by the Tribunal for identification and marked **ID1**.

The above documentary evidence corroborates the Complainant's claim that his right to personal liberty was violated; he was arrested and detained at Kiira Road Police station from the $2^{nd}$ to $9^{th}$ July 2010.

In conclusion therefore, I am finding and holding that on balance of probabilities, that Kiira Road Police Station detained the Complainant Kyeyune Emma for seven days which was 5 days beyond the 48 hours as provided for by the Constitution (as cited) and therefore violated his right to personal liberty.

# Issue No. 2: Whether the Respondent (the Attorney General) is liable for the violation of the Complainant's rights.

In the case of Muwonge Vs. Attorney General, (1967) (EA) 17 Pg. 18, Justice Newbold P. argued that:

The law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are acts for which the master is to be held liable.

Similarly, in the case of Jones Vs. Tower Boots Co. Ltd (1997) All Er 40b, the court handling the case held as follows:

An act is within the course of employment if it is either:-

$(1)$ a wrongful act authorized by the employer, or

(2) a wrongful and unauthorized mode of doing some act authorized by the employer.

The Police Officers at Kiira Road Police Station who arrested the Complainant did so as they carried out their official duty of arresting and detaining suspects on behalf of the state. However in doing so, they detained the Complainant beyond 48 hours which was unlawful. Article 119 of the Constitution of Uganda provides that the functions of the Attorney General as among others, to represent the Governments in courts or any other legal proceedings to which Government is a party. Therefore the Attorney General is the right party as the Respondent is the instant matter. It therefore follows that since the Police officers unlawfully detained the Complainant did so in the course of their duty, I must hold the Attorney General vicariously liable for their actions that amounted to a violation of Kyeyune Emma's right to personal liberty.

## Issue No. 3: Whether the Complainant is entitled to any remedy

Article 53 (2) the Constitution empowers the Uganda Human Rights Commission, where it has been satisfied that there has been an infringement on anybody's human right or freedom, to order payment of compensation or any other legal remedy or redress.

Article 8 of the Universal Declaration of Human Rights provides that;

"Everyone has the right to an effective remedy by the competent national tribunals" for acts violating the fundamental rights granted by the Constitution or by law"

Taking into account the evidence before me, the number of days he was detained at Kiira Police Station, and the fact that the Complainant was found innocent of the charges against him in a court of law of the alleged crime and the current value for money, I find that a total amount of UGX. 2, 500,000/= (Uganda Shillings Two $\mathsf{S}$

million five hundred thousand) to be reasonable and adequate compensation to Kyeyune Emma for the violation of his right to personal liberty. I so award.

I therefore order as follows:

## **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (Respondent) is ordered to pay the Complainant, Kyeyune Emma a total sum of Ug. Shs.2,500,000/= (Uganda Shillings two million and five hundred thousand only), as compensation for the violation of his right to personal liberty. - 3. The said amount of Ug. Shs. 2,500,000/= (Uganda Shillings two million and five hundred thousand only), shall carry interest at court rate from the date hereof until payment in full.

Either party may appeal to the High Court of Uganda within 30 days from the date of this decision if not satisfied with the decision of this Tribunal.

So it is ordered.

DAY DEC $2016.$ DATED AT KAMPALA ON THIS.

**MEDDIE B. MULUMBA** PRESIDING COMMISSIONER