Luyenjje Najjimu and Others v Uganda (Criminal Applications No. 10, 12 & 13 of 2023) [2024] UGHCICD 18 (23 April 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**INTERNATIONAL CRIMES DIVISION**

**CRIMINAL APPLICATIONS NO. 10, 12 & 13 OF 2023**

**(ARISING FROM HCT-00-ICD-SC-0007-2022)**

1. **LUYENJJE NAJJIMU** 2. **KATUMBA ABDU RASHID ===================== APPLICANTS** 3. **KIYEMBA ARAFAT**

**VERSUS**

**UGANDA ====================================== DEFENDANT**

**BEFORE: HON JUSTICE SUSAN OKALANY**

**RULING**

**BACKGROUND**

1. The applicants all filed separate applications for enforcement of human rights, which were amalgamated by consent of the parties. They brought their applications by Notice of Motion under ***Articles 24, 28(11), 44(a) and (c) of the Constitution of the Republic of Uganda, 1995 as amended, Sections 3,4,6,8,9,11,14 and 15 of the Human Rights (Enforcement) Act, 2019, Sections 2-8,11,14,15,23 and the 2nd Schedule of the Prevention and Prohibition of Torture Act, 2012 and Rules 6,7(1), 8 and 11 of the*** ***Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019***, praying for: 2. A declaration that the charge and caution statements purportedly made by the applicants were generated through torture, cruel, inhumane or degrading treatment. 3. A declaration that the criminal proceedings under Session Case No. 07 of 2022 against the applicants arising out of the said statements are a nullity. 4. An order nullifying the charge and caution statements purportedly made by the applicants. 5. An order acquitting the applicants on any criminal liability arising out of the charge and caution statements purportedly made by them. 6. An order unconditionally releasing the applicants from prison 7. An order restraining the respondent or state agency from arresting, detaining and or prosecuting the applicants in relation to facts similar to or arising out of the charge and caution statements purportedly made by the applicants. 8. Orders awarding the applicants with aggravated, exemplary and general damages, costs and interest on the costs and damages. 9. The grounds in support of the application as contained in the Notice of Motion and applicants’ affidavits in support are briefly that: 10. Luyenjje Najjimu (1st applicant) and Kiyemba Arafat (2nd applicant) are jointly charged with the offence of belonging to a terrorist organisation contrary to ***Section 11(1) of the Anti-Terrorism Act***, ***2002*** while Katumba Abdu Rashid (3rd applicant) is charged with the offence of terrorism contrary to ***Section 7(2) of the Anti-Terrorism Act, 2002***. 11. The 1st applicant was arrested on 31st August 2021 from Masaka, while the 2nd applicant and 3rd applicant where arrested on an unidentified date in 2021 and detained at Uganda Peoples’ Defence Forces (UPDF) Chief of Military Intelligence (CMI) in Mbuya until they were produced in court on 21st November 2021. 12. During their detention, the applicants were subjected to cruel, inhumane degrading and torturous treatment which included but was not limited to beatings, thumping, and beating with wires, whereby they sustained physical injuries on their limbs, suffered physiological torture, trauma and physical pain. 13. The applicants were detained for a period of two months in total darkness such that they could not differentiate between day and night. 14. On a certain day during the detention, amidst inhuman, degrading, cruel treatment, torture together with threats to their lives for almost the whole day, the applicants were intimidated and forced into signing some unknown documents. 15. The applicants now know that those documents are the charge and caution statements attributed to them and disclosed by the respondents. 16. The applicants state that they have never voluntarily made any statements confessing to charges brought against them. 17. It is in the interest of safeguarding their right to fair hearing, freedom from torture, cruel and degrading treatment and substantive justice that the application is allowed. 18. The respondents opposed the application through an affidavit in reply deponed by Detective Assistant Inspector of Police Kimutwa Bernard who is attached to Kampala Metropolitan Criminal Investigations Directorate Headquarters in Kibuli, He is one of the investigating officers in the case in which the applicants are jointly indicted. The deponent made three affidavits in reply to the applicants’ affidavits in support to the motion that were similar in content. Briefly, the grounds opposing the application are as follows: 19. That the applicants were not detained in an illegal detention facility; 20. That the applicants were not tortured; 21. That the voluntariness of a charge and caution statement is a question of evidence that can only be determined at the trial; and 22. That it is in the interest of justice and fairness that the applications are dismissed.

**REPRESENTATION**

1. Ms. Sylvia Namawejje Ebitu represented the applicants, while Ms. Marion Ben-Bella represented the State.

**SUBMISSIONS**

***Arguments for the applicants***

1. The applicants’ filed their joint submissions on 31st May 2023 before Ms. Sylvia Namwejje Ebitu was appointed as their counsel on state brief. She did not make any additions or corrections to the submissions filed by the applicants. 2. The applicants raised two issues for the court’s determination, namely: whether the applicants’ non-derogable rights guaranteed under ***Article 44 of the Constitution*** of the Republic of Uganda were infringed upon and what remedies are available to the parties. 3. The applicants’ quoted ***Section 11(1) and (2) of the HREA***, to submit that it is an offence for a person to derogate from a non-derogable right and freedom guaranteed under the constitution and maintaining that where a competent court makes a finding that any of an accused person’s non-derogable rights and freedoms have been infringed upon, a judge or magistrate presiding over the trial of such accused shall declare the trial a nullity and acquit the accused person. They quoted the case of ***Dr. Kizza Besigye & Ors v. Attorney General*** (***Constitutional Petition No. 7 of 2007***) where the court upon establishing that the petitioners’ non-derogable rights were violated declared the criminal trial against them a nullity. 4. The applicants submitted that they have proved that their non-derogable rights were violated by way of affidavits which had not been rebutted. They relied on the case of ***Oloka Onyango & Ors v. Attorney General*** (***Constitutional Petition No.8 of 2014***) for the position that where facts are sworn to an affidavit, the burden to deny them is on the other party and if the said party fails to do so, the facts are assumed to have been accepted. 5. The applicants reiterated what was contained in their affidavits and cited the definition of torture as provided for under the ***Prevention and Prohibition of Torture Act, 2012***. They concluded that the acts complained of by them amount to torture. They averred that the fact that they were tortured and forced to sign charge and caution statements is an infringement of ***Article 28(11) of the Constitution of the Republic of Uganda, 1995*** which provides that where a person is being tried for a criminal offence, neither that person nor the spouse shall be compelled to give evidence against themselves. 6. On the issue of remedies available to them, the applicants relied on ***Sections 9, 11(2) and 15(3)c) of the HREA*** to pray for orders of compensation, declaration that the criminal trial against them is a nullity and an order for their unconditional release from detention. 7. The applicants therefore submitted that given the time they have spent in prison since 2019 and the violations of their rights, they pray that each of them be awarded UGX. 150, 000, 000 as combined general, exemplary and aggravated damages. They also prayed for an interest of 15% per annum on both damages and costs from the ruling date till payment in full.

***Arguments for the State***

1. Ms. Marion Ben-Bella raised a preliminary objection that the affidavits sworn by the applicants were defective and bad in law. She submitted that the applicants did not swear their affidavits before a commissioner for oaths. To prove this, the respondent filed affidavits of ASP Siima Simon Peter and ASP Ben Talemwa who were prison officers attached to the applicants on the days they claim to have sworn their affidavits. According to their affidavits, both prison officers did not witness the Commissioner for Oaths visit the applicants on the days the applicants allege to have affirmed their affidavits. These two affidavits were also supported by an affidavit sworn by a one Corporal Leku Felix, a police officer who when he swore his affidavit, was assigned to register all incoming visitors to this court’s premises in Kololo. According to Corporal Leku, the commissioner for oaths never signed in the court visitors’ registration book on any of the days it is said that he administered the affirmations. 2. The respondent’s counsel submitted that a deponent of an affidavit must personally appear, sign and swear an affidavit before a commissioner for oaths and that the failure to do would render that affidavit defective. Counsel relied on ***Section 5 of the Commissioners for Oaths (Advocates) Act, Cap 5, Section 6 of the Oaths Act*** and ***Kakooza John Baptist v. Electoral Commission and Yiga Anthony*** (***Election Petition No. 11 of2007***) to support her submission. She therefore prayed that upon finding that the affidavits are defective, the court should strike out the applicant’s application basing on the decision in the case of ***Jayanth Amratlal and Anr. V. Prime Finance Co. Ltd*** (***HCT-00-CC-MA 225/2008***) where it was held that where an application is grounded on evidence by affidavit and such affidavit is struck out, the application collapses in the absence of any other valid affidavit. 3. State Counsel also submitted that the application brought by the applicants was pre-mature, misconceived and speculative. According to her, a charge and caution statement is evidence whose admissibility and voluntariness is only determined at the trial. She averred that by virtue of ***Tuwamoi v. Uganda (1967) EA 84***, the voluntariness of charge and caution statement should not have been a subject of the application at this stage. 4. On the allegations of torture, the respondent’s counsel submitted that the burden of proof lies on the applicants and that in the instant cases, the applicants have not produced any evidence to support their claims. Counsel observed that the applicants’ affidavits were couched in similar words and that the allegations therein were all rebutted to by Assistant Inspector of Police Kimutwa Bernard who stated that the applicants were neither tortured nor detained in any military facility.

***Arguments in rejoinder***

1. The applicants submitted that they had adduced evidence to show that their affidavits had been sworn before a commissioner for oaths. They stated that the affidavits sworn by ASPs Siima Simon Peter and Ben Talemwa were illegally filed, as their role as police officers does not include the supervision of commissioner for oaths. They asserted that they had filed supplementary affidavits, which show that their affidavits were properly commissioned but the respondent did not rebut those supplementary affidavits. 2. In response to the respondent’s argument that the application was premature, the applicants submitted that their application is a matter of enforcement of non-derogable rights and not just a matter of admissibility of evidence. They therefore submitted that the respondent was relying on technicalities to defeat their application. The respondents relied on the case of ***Charles Onyango Obbo & Anr. v. Attorney General (SCCA No. 2 of 2002)*** to submit that in human rights violation cases, it is upon the respondent to prove that their actions did not violate the rights of an applicant. The applicants therefore submitted that the respondent had failed to prove that they were not tortured and insisted that they had adduced affidavit evidence, which had not been rebutted by the respondent.

***DETERMINATION***

1. I have carefully considered this application, the relevant law and authorities cited, as well as the submissions by both parties. To resolve this application, I have formulated the following issues: 1. Whether the application is properly before the court 2. Whether the applicants’ affidavits in support of the motion are incurably defective 3. What is the import of ***Section 6(5) of the Human Rights (Enforcement) Act, 2019 (HREA)*** on issues (a) and (b) above 4. Whether the applicants’ right to freedom from torture, cruel, inhumane and degrading treatment was violated 5. What remedies are available to the applicants 2. ***WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT*** 3. This issue was not raised by any of the parties. However, upon perusal of the pleadings, I observed that the applicants instituted this suit against “**Uganda**” and served their pleadings on the Office of the Director of Public Prosecutions (DPP). Though the applicants’ did not name the people who tortured them in their pleadings, they allege that they were tortured while in detention at CMI. According to ***Section 188(3)(b) of the Uganda Peoples’ Defence Act, 2005***, once a person has been arrested in exercise of powers under that Act, a report of that arrest must be submitted to the Service of the CMI. ***Section 2 of the Uganda Peoples’ Defence Forces Act***, ***2005*** defines the term “Service” as a component part of the UPDF. CMI is therefore a component part of the UPDF, which is an agency of the government of Uganda. 4. According to ***Section 10(1) of the HREA***, the state shall be vicariously liable for the actions of a public officer who individually or in association with others violates or participates in the violation of a person’s rights or freedoms. The ***HREA*** does not define who a public officer is. However, ***Section 17 of the HREA*** provides that the ***Civil Procedure Act, Cap 71 (CPA)*** and the rules thereunder with necessary modifications may apply to the enforcement of rights and freedoms under the Act. 5. ***Section 2(r)(ii), (v) and (vii) of the CPA*** defines a public officer as a person who falls under the following description:

*“ii) every commissioned or gazetted officer in the Uganda Peoples’ Defence Forces.*

*v) every person whose duty it is, in an official capacity, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety or convenience.*

*vii) every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty*;*”*

1. It is not possible to determine if the violators of the applicants’ rights were commissioned or gazetted officers in the UPDF since the applicants’ did not identify them. However, all UPDF officers fall within the descriptions aforementioned of ***Section 2(r)(v) and (vii) of the CPA***. That is, UPDF officers are in service of and paid by the government to perform the duty of preserving and defending the sovereignty and territorial integrity of Uganda (***Article 209(a) of the Constitution***) for the benefit of the public. Through their function of preserving and defending the territorial integrity of Uganda, UPDF officers have a duty in their official capacity to protect public safety. Therefore, by virtue of ***Sections 10(1) and 17 of the HREA*** and ***Section 2(r)(v) and (vii) of the CPA***,UPDF officers are public officers for whose actions the government is vicariously liable. In fact, many court decisions have found the government of Uganda vicariously liable for actions of UPDF officials carried out in the course of their employment.(See for example: the case of ***Attorney General v. Sam Semanda (Civil Appeal No.8 of 2006) [2007] UGSC 22)*.** 2. It is settled law that civil proceedings by or against the Government ought to be instituted by or against the Attorney General. (See: ***Section 10 of the Government Proceedings Act*).** 3. In the case of ***George Kiggundu v. Attorney General (Civil Suit No. 386 of 2014)***, the plaintiff sued the defendant for special, general and exemplary damages arising out of his false imprisonment, assault, torture, injury among other things, occasioned on him by officials of the UPDF. The plaintiff was arrested and interrogated on allegations that he was recruiting Peoples Redemption Army and Allied Defence Forces in areas of Kasese. The court found that the soldiers through the arrest and interrogation of the plaintiff were acting within the scope of their employment that is to provide security to all citizens of Uganda. 4. The facts of the case of ***George Kiggundu*** *(supra)* are similar to the applicants’ case who allege that they were arrested, detained at CMI and were tortured into confessing to the charges brought against them of terrorism. It is trite law that a master shall be vicariously liable for his servant’s actions done within the scope of his employment even if those actions are done contrary to the orders of the master; and even if the servant is acting deliberately, wantonly, negligently or criminally, or for his own behalf. (See: ***Muwonge v. Attorney General of Uganda [1967] EA 17***) 5. From the surface of the pleadings, the applicants were tortured by agents of the government of Uganda, which actions though unlawful, were conducted within the scope of their employment. 6. The right party therefore to this suit is the Attorney General. However, the applicants sued Uganda, which for purposes of civil proceedings is a non-existent party. In the case of ***Mulangira Ssimbwa a.k.a Afidra Milton v The Board of Trustees of Miracle Centre & Anor (Miscellaneous Application Number 576 of 2005)***, the applicant having realised that the Board of Trustees of Miracle Centre was a non-existent party, made an application to substitute the board with another existing party. Kasule J. held that a suit by or against a non-existing party is bad in law and ought to be rejected by court since it cannot be amended by replacing such a party with one that has legal existence. The court therefore denied the application and struck out the applicant’s plaint. 7. By virtue of the authorities above, I am persuaded that this application is improperly before the court, hence must be dismissed. 8. Notwithstanding this finding, for academic purposes only, I will now go ahead to discuss the rest of the issues that I raised for determination above as if I had found that this application was properly filed. 9. **WHETHER THE APPLICANTS’ AFFIDAVITS IN SUPPORT OF THE MOTION ARE INCURABLY DEFECTIVE** 10. The respondent in their submissions raised a preliminary objection that the applicants’ affidavits in support of the motion are incurably defective. This is because they were not sworn before a commissioner for oaths. The respondent hence prayed that the court should strike out the applicants’ affidavits and dismiss the application based on the decision of ***Jayanth Amratlal & Anor v. Prime Finance Co. Ltd.*** The case is to the effect that where an application is grounded on evidence by affidavit and such affidavit is struck out, the application collapses in the absence of any other valid affidavit. 11. The law on swearing of affidavits before a commissioner is as follows: A commissioner for oaths *before whom* any oath or affidavit is taken must state truly in the jurat at what place and on what date the affidavit is taken.(See: ***Section 5 of the Commissioner for Oaths (Advocates) Act, Cap 5***). 12. A person who is required to take oath by law must say or repeat after the person administering the oath the words prescribed by law or by practice of the court as the case may be. (See: ***Section 5 of the Oaths Act, Cap 19***) The applicants in this case are Muslims who elected to affirm their affidavits. According to ***Section 8 of the Oaths Act***, a person who chooses to make an affirmation shall repeat the words, “I solemnly, sincerely and truthfully affirm that ....”, and such other consequential variations of form of the required oath. The oath for affidavits is laid down under the first schedule of that Act. Therefore, in light of the aforementioned ***Section 8***, the affirmation would be; “*I, (name of the deponent) solemnly, sincerely and truthfully affirm that this is my name and handwriting and that the facts deposed by me in this affidavit are the truth, the whole truth and nothing but the truth.*” 13. An affidavit is a statement/declaration in writing made on oath/affirmation before one having authority to administer an oath/affirmation. (See: ***Mugema Peter Vs Mudiobole Abedi Nasser (Election Petition Appeal No. 30/2011) [2012] UGCA 7***) An affidavit signed but not sworn before a Commissioner for Oaths is a mere plain statement that cannot pass as an affidavit. To condone an unsworn statement seeking to pass as affidavit evidence would undermine the importance of affidavit evidence, which is rooted on the fact that it is made on oath. (See: ***Kakooza John Baptist vs Electoral Commission and Another [2008] UGSC 8***). The established practice of courts therefore is that where it is proved that an affidavit was not sworn before a commissioner for oaths; such affidavit is incurably defective and must be struck off the court record. 14. The affidavits in contention were affirmed on 9th May by 1st applicant and on 23rd May by 2nd Applicant and 3rd applicant. The respondent filed two affidavits to prove that the applicants’ affidavits in support to the motion were not sworn before a commissioner for oaths. 15. ASP Siima Simon Peter, a prisons officer attached to Luzira Upper Prison, swore the first affidavit. This officer on 9th May 2023 was deployed to escort the applicants to this court’s premises in Kololo. The officer swears that on that day, he escorted and was in charge of the three applicants who remained under his watch. He further states that the 1st applicant did not sign any documents or receive a visitor by the name of Fabian Aogon who is the Commissioner for Oaths listed in all the applicants’ affidavits. He also swears that the practice of Uganda Prisons is that all internally generated official or non-official documents that prisoners intend to use outside prison premises are submitted for booking and clearance before they are forwarded outside with a prison stamp and that on that date, there was no affidavit forwarded by the prisons service in respect of 1st applicant. 16. Attached to ASP Siima’s affidavit is a copy of the prisons’ visitors’ registration book that reflects that the mentioned commissioner for oaths was not registered as a visitor on the date that the 1st applicant is said to have commissioned his affidavit. Also attached to his affidavit is a copy of the prisons’ book that is a record of documents taken out of prisons’ premises by prisoners. This copy reflects that 1st applicant never registered any document on the date in contention. 17. Corporal Leku Felix who is a police officer attached to the Anti-Corruption and International Crimes Division, swore the second affidavit. According to his affidavit, his role was to guard the main gate and register all incoming visitors/members of the public who wish to access court premises. He swears that on 9th May and 23rd May 2023, no person by the names of Fabian Aogon was registered in the court visitors’ registration book. Attached to the Corporal’s affidavit is the court registration book, which shows that Fabian Aogon was not registered in the book. 18. In response, the applicants each filed an affidavit attesting that on the dates they swore their affidavits, they left prison with handwritten applications and affidavits, which were handed over to the 1st Applicant’s brother who printed out their affidavits and returned with a commissioner for oaths to swear their affidavits. They averred that the said commissioner asked them whether they understood what was contained in the affidavits to which they answered in affirmative, raised their right hands and signed, after which the commissioner countersigned and stamped the affidavits. To explain why their names were not in the prisons’ register for documents cleared, the applicants stated that handwritten documents of prisoners are not subjected to censure and booking. 19. The 1st Applicant’s brother and the commissioner for oaths also swore affidavits swearing to the facts as deponed in the applicants’ affidavits. The commissioner for oaths stated in his affidavit that as an officer of court, he is not required to register anywhere to access court or prisoners at court premises. Male Mabirizi, a friend to the applicants, also filed an affidavit stating that when he was imprisoned, he had visitors who came to see him at the court premises and they were never required to register. He also stated that he had visited the applicants many times at the court and it was never required of him to register at the court’s gate or cells.

*Analysis of the evidence:*

1. The jurat of ASP Commissioner Siima Simon Peter’s affidavit has a signature and stamp of the officer in charge of Upper Uganda Prisons. It does not indicate the name of the officer and neither is it clear if he/she is acting in the capacity of a commissioner for oaths or justice of peace. This offends ***Rule 9*** and the ***3rd Schedule of the Commissioner for Oaths Rules.*** 2. The purpose of indicating the name of the person administering the oath/affirmation is to confirm if that that person had the authority to administer that oath/affirmation. An affidavit is incurably defective where a person without authority administers an oath for that affidavit. (See: ***Otim Nape George William v. Ebil Fred & Anor (Election Pet. No.17 Of 2011) (UGHC 73***). 3. However, the omission to indicate the name of the commissioner for oaths/justice for peace in the jurat of an affidavit is minor and can be cured by an affidavit clarifying the particulars of the officer who administered the oath. (See**: Otim Nape George William** *supra*) In this case, the respondents did not file such affidavit. Since the burden of proof lies on the respondents to prove this issue, it is their responsibility to ensure that they comply with rules of evidence. Had this court found that this application is proper before it, it would not have relied on ASP Siima’s affidavit. 4. In order to prove this issue, the respondent filed affidavits to which copies of pages of the registration books as described above under paragraph 36 and 37 were attached. According to ***Section 73(a)(iii) of the Evidence Act, Cap 6***, documents forming the acts or records of the act of public officers, legislative, judicial and executive, whether of Uganda, or any other part of the Commonwealth, of the Republic of Ireland or of a foreign country are public documents. In this case, the court and prison registration books are records of the acts of public officers. ***Section 75 of the Evidence Act, Cap 6*** provides that:

“ *Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees for the copy, together with a certificate written at the foot of the copy that it is a true copy of that document or part of the document, as the case may be, and the certificate shall be dated and subscribed by the officer with his or her name and official title, and shall be sealed whenever the officer is authorised by law to make use of a seal, and the copies so certified shall be called certified copies. ”*

1. In order to prove public documents***, Section 76 of the Evidence Act Cap 6*** provides that: “*such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies*.” To support the argument that the applicants’ did not properly commission their affidavits, the respondents attached two copies of uncertified public documents as described in paragraphs 36 and 37 above. By virtue of the aforementioned sections, this court would not rely on the respondent’s annexures used to support its case. 2. Nevertheless, the substance of the respondent’s affidavits is that the applicants’ never affirmed their affidavits before a commissioner for oaths because on the dates of contention, he never signed he deponents’ registration books and was not seen by them administering the oath. 3. It is the gist of the applicant’s evidence that in their experience, not all visitors to the prison facility register their names in the books referred to by the respondents. The applicants’ affidavits raise a probable explanation to the events in contention which the respondents have not rebutted, neither did they seek to cross-examine the deponents of the applicants’ affidavits. Again, as mentioned above, the burden of proof lies with he who asserts a fact. In the circumstances before the court, having disregarded the respondent’s annexures, there is no evidence of high probability to warrant a reference that the applicants did not affirm their affidavits before a commissioner for oaths. The respondents have not discharged the burden to prove that the applicants’ did not properly commission their affidavits. 4. Notwithstanding the above finding, an analysis of the applicants’ affidavits reveals that they did not properly affirm to those affidavits. The applicants and the commissioner for oaths all stated that the latter asked the applicants if they understood what was contained in their affidavits to which they affirmed and signed thereafter. The ***Oaths Act***, as quoted above under paragraph 32, is very clear on what words a deponent must repeat for an affidavit to be sworn properly. What makes an affidavit different from other statements is that it is a statement made on oath, which makes it admissible in evidence. The applicants did not affirm that what was contained in their affidavits is true as required by the ***Oaths Act***. Therefore, their purported affidavits are plain statements that are incurably defective. 5. In the circumstances, therefore, their affidavits would be struck off the court record. 6. **WHAT IS THE IMPORT OF S.6(5) OF THE HREA ON ISSUES 1 AND 2** 7. Under issues a and b, it has been resolved that the application is improperly before the court and that the affidavits in support of the motion are incurably defective. This implies that the application must be dismissed, however***, Section 6(5) of the HREA, 2019*** provides that, “No suit instituted under this Act, shall be rejected or otherwise **dismissed** by the competent court merely for failure to comply with **any** procedure, form or on any technicality.” 8. Whereas a suit is not defined by the HREA, **Section 2(x) of the CPA** defines a suit as civil proceedings commenced in any manner prescribed under the Act. Therefore, the questions to be answered are whether suing the right party and swearing an affidavit before a commissioner of oath are matters of procedure, form or technicality referred to above, which if not complied with should not lead to the dismissal of this application.

*Suing the right party:*

1. A plaintiff/applicant is *dominus litus*, that is; they are at liberty to sue anybody that they think they have a claim against and cannot be forced to sue anybody. This however does not mean he/she can sue just anybody even if that person does not have capacity to be sued. In fact, where a plaintiff/applicant sues a wrong party, he/she must shoulder the blame. (See: ***Inspectorate of Government & Anor v. Blessed Constructors Ltd (Civil Appeal No. 21 of 2009) [2009] UGCA 46***). 2. Having a right party to a suit is not a mere matter of procedure, form or technicality but rather a matter that touches the substance of an action. Once a person brings a claim against another, the principles of fair hearing, which is a fundamental and non-derogable right, kick into play. It requires that the person, against whom a claim is brought, is informed of it, given adequate time to prepare and permitted to present their defence to court. (See: ***Article 28 and 42 of the Constitution***). Failure to follow these steps would lead to the condemnation of a party without being heard. Identification of the right party is also essential for purposes of awarding compensation to a wronged party, which is a fundamental principle in adjudication of matters. (See: ***Article 126(2)(c) of the Constitution***). It would defeat the aims of justice for compensation to be awarded against a wrong party. 3. In the instant case, the applicant sued Uganda which as already discussed above, is a wrong/non-existent party in a civil suit. Whereas the DPP filed responses to the application, the DPP’s office has no *locus standi* before the court, as it is incapable of suing or being sued. As already discussed above, suing a non-existent party is an anomaly that cannot be cured by amendment as provided for under ***Order 1 Rule. 10(2) of the Civil Procedure Rules***. 4. In conclusion, I opine that suing a non-existent party is not a matter of procedure, form or technicality, which would by virtue of ***Section 6(5) of the HREA*** constrain the court from dismissing this application.

*Swearing an affidavit before a commissioner for oaths*

1. The purpose of swearing an affidavit before a commissioner for oaths is so that the said commissioner satisfy himself or herself that the person named as the deponent and the person before them are the same and that the person is outwardly in a fit state to understand what he or she is doing. (See: ***Rule 7 of the Commissioner for Oath Rules***). The other purpose is so that the deponent confirms an oath that whatever is stated in their affidavit is the truth. As already discussed above, what makes an affidavit an affidavit is the oath made by the deponent and without the swearing of an oath/making an affirmation, an affidavit becomes a mere statement. Therefore, failure to swear the oath or to make the affirmation touches a matter of substance and is not a mere procedure, form or technicality for which***Section 6(5) of the HREA*** would apply. 2. **WHETHER THE APPLICANTS’ RIGHT OF FREEDOM FROM TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENT WAS VIOLATED** 3. Let me now look at the evidence adduced by the applicants to prove that their right to freedom from torture, cruel, inhuman and degrading treatment was violated, as though the provisions of ***Section 6(5) of the HREA*** apply to the facts of this case. 4. A person who desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which they assert, must prove that those facts exist. (See: ***Section 101(1) of the Evidence Act, Cap 6***) In this case, the applicants want the court to find that their right to freedom from torture, cruel, inhuman and degrading treatment was violated. The burden of proof of that fact lies with them. 5. Applications for human rights enforcement are civil in nature, hence the standard of proof is one of balance of probabilities. **(**See*:* ***Asiimwe & Another v. Attorney General & 2 Ors (Miscellaneous Application No. 7 of 2022*)** 6. Mubiru J. in the case ***of Olanya James v. Ociti Tom & 3 Ors (Civil Appeal No, 0064 of 2017*)** on discharging the burden of proof on a balance of probabilities held as follows: 7. The court may reject any hypothesis in the absence of evidence supporting it. When the law requires proof of any fact, the court must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found because of a mere mechanical comparison of probabilities independently of any belief in its reality. 8. It is the law of evidence that the party who bears the burden must produce evidence to satisfy it, or his or her case is lost. The probabilities must be high enough to warrant a definite inference that the allegations are true. 9. In a civil suit, when the evidence establishes conflicting versions of equal degrees of probability, where the probabilities are equal so that the choice between them is a mere matter of conjecture, the burden of proof is not discharged (see ***Richard Evans and Co. Ltd v. Astley, [19U] A. C. 674 at 687***). 10. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the trier of fact may reasonably be satisfied (see ***Bradshaw v. McEwans Pty Ltd, (1959) I0I C. L. R. 298 at 305***). 11. The law does not authorise court to choose between guesses, where the possibilities are not unlimited, on the ground, that one guess seems more likely than another or the others. 12. The applicants had submitted that the burden of proof lies on the respondent to prove that they did not violate the applicants’ rights. This is a misinterpretation of the decision of the Supreme Court in ***Charles Onyango Obbo (supra)***. The central issue in that appeal was whether ***section 50 of the Penal Code Act***, which made publication of false news a criminal offence, contravened the protection of the individual right of freedom of expression, which includes freedom of the press. The court, in agreement with the case of ***Major General David Tinyefuza v. Attorney General, Constitutional No. 1 of 1997 (SCU) (unreported)*** held: *“When the state or any person seeks to do an act or pass any law, which derogates on the enjoyment of the fundamental rights and freedoms guaranteed by the constitution, the burden is on that person or authority seeking the derogation to show that such act or law is acceptable within the derogations permitted under Article 43 of the Constitution.”* This decision was in respect of actions done or yet to be done or laws passed or yet to be passed that seek to limit the enjoyment of rights and freedoms under the Constitution in favour of public interest as stipulated under ***Article 43 of the Constitution of the Republic of Uganda***. The effect therefore of that decision was that a person who does any act or seeks to pass any law that curtails the enjoyment of rights and freedoms based on ***Article 43 of the Constitution*** has the burden to prove that such derogation is acceptable and demonstrably justifiable in a free and democratic society. This decision is not in any way saying that once a person claims that their rights have been violated, the burden will shift to the alleged violator to prove that he/she did not violate the rights of that claimant.

*The law on torture:*

1. Freedom from torture is a non-derogable right provided for under ***Article 44(a) of the Constitution of Uganda, 1995****.* ***Section 2(1) of the Prevention and Prohibition of Torture Act 2019*** defines tortureas:

*“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 the 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 of planning to commit; or*

*(c) Intimidating or coercing the person or any other person to do, or to refrain from doing, any act.”*

1. Severe pain and suffering is defined under ***Section 2(2) of the Prevention and Prohibition of Torture Act, 2012*** as prolonged harm caused by or resulting from: 2. *the intentional infliction or threatened infliction of physical pain or suffering;* 3. *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;* 4. *the threat of imminent death; or* 5. *the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.*

*Evidence on file:*

1. The applicants through their impugned affidavits affirm that they were arrested and detained at UPDF CMI. They state that were thumped, beaten with wires wherewith they sustained physical injuries on their limbs, suffered physiological torture, trauma and physical pain. They also state that they were detained in total darkness in that they could not differentiate between day and night for two months. They allege that amidst that cruel treatment and torture, documents were brought to them to sign. The averred that they were threatened that their lives were at stake, forced and intimidated into signing those documents. They now know that those documents are the charge and caution statements attributed to them in the main criminal case against them. 2. The respondent filed an affidavit in reply, sworn by AIP Kimutwa Bernard who is one of the investigating officers attached to the criminal case that the applicants are jointly charged in. He swore that he is conversant with the facts and evidence of the case and that the applicants were neither detained in an illegal detention facility nor tortured. 3. The applicants filed affidavits in rejoinder where they all stated that AIP Kimutwa was not conversant with the facts in their application, as they never met him while in their custody at CMI in Mbuya. They reiterated the contents of their affidavits in support of the application.

*Analysis of the evidence*

1. The acts complained against by the applicants fall within the definition of torture. I however find that they have not discharged the burden of proof on a balance of probabilities. 2. Court of Appeal in the case of **Paul Wanyoto Mugoya v. Sgt. Oumo Joshua & AG [Civil Appeal No. 91 of 2021]** held that the requirement for medical evidence to prove torture has no legal basis and that it is rare to have direct evidence of torture because of the nature of the crime. The Court also quoted with approval the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment A/HRC/25/60 4th March 2014 by Juan E. Mendez at page 8, while discussing the burden of proof on the admissibility of material obtained by torture in courts, which stated that:

*‘…it is necessary to have due regard for the special difficulties in proving allegations of torture, which is often practiced in secret, by experienced interrogators who are skilled at ensuring that no visible signs are left on the victim. In addition, all too frequently those who are charged with ensuring that torture or other ill-treatment does not occur are complicit in its concealment.’*

1. In the case of **Robert Asiimwe Akanga & Kalenga Steven v. AG, DPP & URA (Miscellaneous Application No. 007 and No. 8 of 2022)**, Gidudu J. held that to insist on physical or medical evidence can only promote acts of torture rather than check them. 2. However, in terms of the evidence that the courts relied on to find that there was torture; the above cases are distinguishable from this application. In the case of **Paul Wanyoto** (*supra*), besides the applicants’ affidavits, the court relied on a voice recording of one of the persons alleged to have tortured him to corroborate his affidavit. In **Robert Asiimwe** (*supra*), the applicants attached photographs and medical forms to their affidavits. In this case, the only evidence adduced are the applicants’ affidavits in which the applicants parrot one another in their averrements and yet they all claim to have drafted their affidavits individually. Except for the names of the applicants, their narrations therein are the same word per word. It is not possible for any two human beings, even if they witnessed a similar ordeal, to narrate that ordeal using the same exact words. It seems most probable that the applicants agreed on a storyline before bringing this application. 3. In those circumstances, this court would set a dangerous precedent to rely only on the applicant’s averrements to find that they tortured. It is trite law where facts sworn in an affidavit are neither denied nor rebutted by the opposite party, the presumption is that the facts are accepted. (See: ***Massa v. Achen [1978] HCB 297***) In this case however, the respondents specifically denied the facts as stated by the applicants. The burden therefore remained on the applicants to prove that they were tortured. They have not discharged that burden, as they have in my considered opinion, not adduced cogent evidence to prove their case except for their identical affidavits. 4. In conclusion, therefore, even if the court had found that this suit was properly before the court and that the affidavits had been properly commissioned, the applicants did not discharge the burden of proof that their right to freedom from torture, cruel, inhuman and degrading treatment was violated. 5. **WHAT REMEDIES ARE AVAILABLE TO THE APPLICANTS?** 6. The applicants are not entitled to any remedies as they have failed to prove their claim. 7. As a result, this application fails. Each party shall bear its own costs.

Susan Okalany

**JUDGE**

23rd April 2024