Masereka v Attorney General & Maj. Gen. Kandiho (Miscellaneous Cause 34 of 2022) [2025] UGHCCD 21 (14 February 2025)

## **THE REPUBLIC OF UGANDA**

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

# **(CIVIL DIVISION)**

#### **MISCELLANEOUS CAUSE NO. 034 OF 2022**

## **BUSINDI SAMUEL MASEREKA::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

## **1. ATTORNEY GENERAL OF UGANDA**

2. **MAJ. GEN. ABEL KANDIHO:::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON: JUSTICE SSEKAANA MUSA**

#### **RULING**

This is an application brought under Article 23(2), (4) (b), 24, 28, 44(a), 50(1) of the Constitution of Uganda, 1995; Section 33 of the Judicature Act, Cap. 13 and Rules 3,5(1)(a), (d),6(1)(a),7(1), 9, 11(1)(a), (f) of the Judicature (Fundamental Rights and other Freedoms) (Enforcement Procedure) Rules, 2019) S. 3 (1), 4(1)(a)(d), 6 & 9(1) of the Human Rights (Enforcement)Act 2019 and S.3(1) of the Prevention and Prohibition of Torture Act 2012) for orders, and judicial reliefs that:

- *1) A Declaration that the battering, flogging, intentional infliction of wounds, harassment and waterboarding of the Applicant while in detention at Chieftaincy of Military Intelligence (CMI) Mbuya constitutes a threat and/or Violation of the dignity and freedom from torture, inhuman or degrading treatment guaranteed by Articles 24 & 44 of the 1995 Constitution and S.3 (1) of the Prevention and Prohibition of Torture Act 2012.* - *2) A Declaration that the Respondent's actions of battering, flogging, intentional infliction of pain, waterboarding and Torture of the Applicant while in detention at CMI Mbuya threatened and violated the Applicant's*

*non-derogable freedom from Torture, Cruel and inhuman and degrading treatment guaranteed by Articles 24 & 44 of the 1995 Constitution and S.3 (1) of the Prevention and Prohibition of Torture Act 2012.*

- *3) A Declaration that the Respondent's conduct was a flagrant dereliction of their Human rights obligations to have respect for human dignity and protection from cruel, inhuman and degrading treatment and/or punishment contrary to Article 24 & 44 of the 1995 Constitution and S.3(1) of the Prevention and Prohibition of Torture Act 2012.* - *4) A Declaration that the detention of the Applicant at CMI Mbuya for 19 days constituted Unlawful and illegal detention contrary to Article 23(4) (b) of the 1995 Constitution* - *5) A Declaration that the detention of the Applicant at CMI Mbuya for 19 days constituted detention in an ungazetted place of detention in total violation of Article 23(2) of the 1995 Constitution.* - *6) An Order for special damages.* - *7) An order for general damages.* - *8) Costs of the Suit.* - 9) *Interest on (5), (6) & (7) above***.**

The grounds in support of the application are briefly set out in the Notice of Motion and the affidavit in support sworn by Busindi Samuel Masereka contending that;

- 1. That on January 7th, 2022, at around 18:00hrs while playing pool table at a local pub in Kasese Town, three security operatives clad in UPDF attached to CMI arrested me and confiscated my phone. I was taken to Kilembe Police Post where I spent the night and was barred from informing my family about my sad fate. - 2. That on 8th January 2022 at around 9:00am, UPDF operatives in company of Officer Bwambale, picked me up from the police cell and asked me to lead them to my home in Nyamwamba East which I did.

- 3. That at home, and in the absence of any of my family members, a comprehensive search was done for about three hours and my property, including a laptop, National ID, Flash, Disks, Sim-card and NUP documents used for moblisation were confiscated as exhibits. - 4. That I was then driven to Kasese Central Police Station and later handcuffed and driven to Kampala, accompanied by three UPDF officers. Upon reaching an unknown destination, the hood was taken off, undressed, and taken to a basement cell. - 5. That during the night, I asked some of my fellow detainees they were and was told it was the Chieftaincy of Military Intelligence (CMI) Mbuya. - 6. That on January 9 th , I was interrogated for about four hours by four male officers about the funders of NUP, plans of NUP, and his phone discussion with Lewis Rubongoya, the NUP Secretary General. - 7. That my answers, did not amuse the interrogators who in turn thoroughly battered and brutalized me for close to seven hours using a *"solido wire"* across his body, punched in the lower abdomen, his genitals were not spared either. He sustained serious injuries which are visible to date. - 8. That on the 10th day of January 2022, I was oozing blood from mouth, nose, genitals, back, all over his hands body. On January 12th , 2022, he was again interrogated about the top secrets of NUP and its next move. - 9. That once again, my answers did not amuse the interrogators who in turn stepped un to my earlier sustained wounds and mockingly told me that they were administering medicines to me. From January 9th -26th , he was subjected to a series of interrogations and torture at CMI Mbuya by UPDF operatives. - 10. That he was further reliably informed by his Lawyers M/S PACE Advocates whose information he verily believe to be true that freedom from torture, cruel, inhuman and degrading treatment is incontrovertible and a non derogable human right which reigns supreme in our constitutional dogma.

- 11. That on January 26th 2022, at around 10am, some UPDF Medical personnel accompanied by OC of cells walked up to me and asked if I felt like going home to which I gladly nodded in approval. - 12. That later on day, I was given his belongings including all those confiscated from his home and driven in a Drone to Special Investigations Unit (SIU) - 13. That Upon reaching Kireka, I was left in the care of a UPDF officer and charged with "subversive activities." - 14. That in my current medical condition, I am unable to fend for his family who solely rely on him in all aspects of life for which I seek damages from the respondents. - 15. The impugned actions and/or omissions of the Respondents are manifestly unacceptable, demonstrably unjustifiable in a free and democratic society and specifically go beyond the permissible exercise of the Respondents' law enforcement authority.

In response, the 1nd Respondent through Paul Ajala Mukungu, a Major in the Uganda People's Defence Forces, who holds the position of legal officer within the Joint Anti-Terrorism Task Force (JATT) and the Chieftaincy of Military Intelligence (CMI), filed an affidavit in reply, stating that:

- 1. That I know that the application brought forth by the Applicant is misconceived, devoid of merit and does not disclose any cause of action against the 2nd Respondent. - 2. That I know the Applicant was arrested in a joint operation following clear intelligence that he belonged to the rebel group called Allied Defense Forces (ADF) that has been causing insecurity in various parts of Uganda. - 3. That the Applicant was never transferred to Chieftaincy of Military Intelligence (CMI) headquarters in Mbuya but rather taken to SID detention facility at Kireka which is a gazetted detention facility under the laws of Uganda. - 4. That I know that the allegations of the Applicant being subjected to any form of physical abuse or torture while in custody at the SID facility in Kireka. He

categorically states that Applicant was never battered, brutalized, or tortured during his detention.

- 5. That I know that all investigations involving the Applicant were conducted professionally and in accordance with the law by the Chieftaincy of Military Intelligence (CMI) in conjunction with the Uganda Police Force. - 6. That I know that the 2nd Respondent was wrongly added as a party and ought to be struck off. - 7. That I know that proper procedures were followed throughout the investigation, ensuring that human rights and freedoms were respected. - 8. That I know that after being released on police bond, the Applicant did not file any official complaint or report alleging torture to the head of Chieftaincy of Military Intelligence (CMI).

The legal representation in the case involves *George Musisi* from PACE Advocates, representing the applicant, while *Brian Twinomugisha* from the Attorney General's Chambers represents the respondent

Both parties complied with court directives to file written submissions, which I have reviewed and carefully considered.

# **Issues for Determination**

- *1. Whether the Affidavit in Reply is incompetent?* - *2. Whether the Respondents' conduct amounts to torture or cruel, inhuman and degrading treatment or punishment of the Applicant?* - *3. Whether Respondents violated the Applicant's right to administrative justice and personal liberty?* - *4. What remedies are available to the Applicant?*

# **DETERMINATION**

# *Whether the Affidavit in Reply was Incompetent?*

The applicant argued that the respondents filed their affidavit in reply beyond the permitted timeframe. But it bears emphasis the same was filed with leave of court. This issue is redundant and baseless and the applicant never made any objections at the trial.

In light of the applicant's failure to address the delay promptly, the court exercises discretion under Article 126(2) (e) of the Constitution to focus on the substantive issues of the case rather than procedural lapses that did not cause significant prejudice to the applicant. The respondents' affidavit in reply will, therefore, be admitted, and the court will proceed to hear the merits of the case.

Thus, the court disregards the objection concerning the incompetence of the affidavit in reply, and the matter shall proceed on its merits.

# *Whether the respondents' conduct amount to torture or cruel, inhuman and degrading treatment or punishment of the applicant?*

# *Whether the respondents violated the applicant's right to administrative justice and personal liberty?*

The applicant submitted that the respondents violated his right to freedom from torture, cruel, inhuman and degrading treatment or punishment, which are nonderogable rights guaranteed under Articles 24 and 44 of the Constitution of the Republic of Uganda, 1995. He relied on *Attorney General vs Salvatori and Another, SCCA No. 1 of 1998, pp. 39 & 40***,** in which the Supreme Court held that the protection from torture, cruel punishment, inhuman treatment, degrading treatment, and degrading punishment is absolute.

In support of his claims, he presented photos showing healing wounds on his body and a discharge summary from St. Francis Nsambya Hospital, which indicated that he had symptoms consistent with torture and ill-treatment.

The applicant argued that his detention at CMI for 19 days constituted unlawful detention in an ungazetted place, as CMI is not a gazetted detention facility. He also stated that he was not given a reason for his arrest and was not allowed to inform his family. Citing *Minister of Law-and-order vs Hurley 1986(3) SA 559 (A) at 589E-F*, the applicant asserted that the respondents had the burden of proving that the arrest was lawful.

The applicant contended that the respondents violated his right to administrative justice because he was not brought to court within the mandatory 48 hours stipulated by Article 23(4) (b) of the Constitution. The applicant pointed out that his family even filed a missing person report because they were not aware of his whereabouts. He also referred to *Issa Wazembe Versus Attorney General, Civil Suit No. 154 of 2016*, which held that there are no exceptional circumstances that can justify torture. He noted that Uganda is a party to several international treaties that prohibit torture, including the UN Convention against Torture, the Human Rights Convention, the Universal Declaration of Human Rights, and the African Charter on Human and People's Rights.

He argued that his incommunicado detention should be considered torture under international human rights law and cited the UN Human Rights Committee's position on incommunicado detention. In addition, he pointed to the African Commission on Human and Peoples' Rights' statement that holding an individual without contact with their family is inhumane. Relying on *Zealand Versus Minister for Justice and Constitutional Development (2008) ZACC 3 at para 22*, the applicant submitted that any interference with physical liberty is unlawful.

The respondents denied the applicant's allegations of torture. They stated that he was arrested during a joint operation following intelligence that indicated that he was a member of the ADF rebel group. They cited **Article 212 of the Constitution of the Republic of Uganda of 1995 as Amended,** which mandates the Uganda Police to preserve law and order, prevent and detect crime, and cooperate with other security organs. The respondents stated that both the police and the UPDF conducted investigations in accordance with the law to preserve rights and freedoms. They noted that the applicant never raised any allegations of torture while at CMI.

The respondents further argued that the applicant had not proven the allegations of torture and did not show the court any scars on his body during crossexamination. In their view, the medical report presented by the applicant did not prove that he was tortured. Citing Section 101 of the Evidence Act, the respondents emphasized the applicant's duty to prove the facts in issue. They relied on, *Irembe Wambuli Muchai & 5 Others vs the Attorney General, Kenya Constitutional and Human Rights 211 of 2013*, which set out elements that must be established to prove torture, and *Uganda vs Namsamba (Criminal sessions case 152 of 2015)* which provided a definition for torture under the Prevention and Prohibition of Torture Act, 2012.

The respondents cited the elements of torture as laid out by *Justice Mubiru* **in** *Uganda v. Nansamba* **(Criminal Sessions Case 152 of 2015),** *which include***:**

- The infliction of severe physical or mental pain. - Intentional infliction of pain not inherent in lawful actions. - The purpose of obtaining information, punishment, intimidation, or coercion. - Proof that the accused inflicted the suffering.

The respondents argued that, given the gravity of the applicant's allegations, he should have provided more corroborating evidence to support his claims. Citing *Ireland vs United Kingdom, ECHR Application No. 5310/71* the respondents argued that the applicant needed to establish that the treatment he endured reached a certain intensity to prove torture.

They also cited *Matovu Francis Versus Hon Anita Among & A. G, Misc. Cause No. 329 of 2021* to support their argument that the medical report was not reliable because the applicant did not present the medical officer who conducted the exam for cross-examination. They asserted that the applicant waited three weeks after his release to seek medical attention.

The respondents also disputed the applicant's claim that he was detained in an ungazetted place, stating that he was detained at a Uganda Police Force facility in Kireka. They argued that CMI only detains service offenders. To support their claim that the applicant was lawfully detained, they relied on *Omar Awadh & 10 Others vs Attorney General, Constitutional Petition 55 of 2011*, which held that the police were justified in arresting a suspect without proper identification in the wake of the bombings in Kampala.

Finally, the respondents contended that Major General Abel Kandiho was wrongly sued because, as head of CMI, he was responsible for strategic planning and did not participate in arrests or interrogations. They cited *Fuelex Uganda Limited vs Attorney General & Others, Misc. Cause No. 048 of 2014* to support their argument that individuals should not be sued for decisions made in their official capacity.

#### *Analysis.*

The Ugandan Constitution of 1995 as amended sets out a comprehensive framework for safeguarding personal liberty and human dignity, while balancing necessary limitations on freedoms.

According to Section 3 of the Human Rights (Enforcement Act) Cap 12 states that Under Article 50 of the Constitution, *any person or organization who believes their constitutional rights or freedoms have been violated or threatened may seek redress from a competent court without prejudice to other lawful actions*. Proceedings can be brought by a representative for those unable to act on their own, a member or representative for a group or class, a person acting in the public interest, or an association representing its members.

Further, Section 4 of the Human Rights (Enforcement Act) Cap 12 provides that the High Court has jurisdiction over applications involving non-derogable rights under Article 44, other fundamental rights in Article 45, rights limited during a state of emergency, and rights preserved under this Act when the remedy sought exceeds the jurisdiction of lower courts. Applications must follow prescribed formats and are typically heard in open court, unless the High Court decides otherwise.

### *Article 23: Right to Personal Liberty*

Article 23 protects individual freedom, outlining specific situations where one's liberty can be lawfully limited. These include detention following a court conviction, ensuring court appearance, preventing crime, managing public health risks, and immigration controls. The article requires due process, mandating that detainees be informed of their detention reasons in a language they understand and have access to legal representation. Individuals detained on suspicion of a crime must appear in court within 48 hours, and any time spent in custody before trial must be considered in sentencing. Additionally, habeas corpus rights are safeguarded, guaranteeing that anyone detained can challenge the legality of their detention in court. It is not in dispute that the applicant was detained for 19 days while he was in detention. This was a violation of his right and freedoms.

# *Article 24: Protection from Inhumane Treatment*

This article prohibits torture and inhumane, cruel, or degrading treatment or punishment, underscoring the importance of respecting human dignity. Corporal punishment is also prohibited, especially in educational settings, to uphold these values for all Ugandans. The applicant showed the court or attached pictures of alleged torture marks on his body and it appears they were taken and on the balance of probabilities, the applicant appeared to have been subjected to torture while in detention. Although he never attached a medical report or the doctor never appeared in court to confirm, it is more probable than not that he was tortured.

# *Article 20: Foundation of Human Rights*

As a foundational principle, Article 20 asserts that human rights are inherent and not dependent on state grant. All government bodies, agencies, and individuals are responsible for respecting, upholding, and promoting the Constitution's rights and freedoms, fostering a shared duty to protect human dignity.

The *International Covenant on Civil and Political Rights (ICCPR)*, which Uganda ratified in 1995, mandates Uganda to uphold key human rights protections, particularly the rights to personal liberty and freedom from torture. **Article 9** of the ICCPR protects personal liberty, prohibiting arbitrary arrest and detention, while ensuring individuals can legally challenge their detention. **Article 7** further provides absolute protection from torture, cruel, inhuman, or degrading treatment, a right that remains non-derogable even in emergencies.

These protections align with Uganda's Constitution, especially Chapter Four, which integrates international human rights standards. By ratifying the ICCPR, Uganda commits to respecting and fulfilling these rights, while also reporting to the United Nations Human Rights Committee to demonstrate compliance and progress, reinforcing its dedication to safeguarding personal liberty and prohibiting torture within its jurisdiction.

The *Prevention and Prohibition of Torture Act (2012)* in Uganda aligns with the country's constitutional ban on torture, cruel, inhuman, or degrading treatment. Under the Act, **torture** is defined as any act that inflicts severe physical or mental suffering on a person, particularly by public officials or private individuals in positions of authority. This includes physical acts like beating, sexual abuse, or electric shocks, as well as psychological abuse, such as threats of harm to the individual or their family, prolonged isolation, and humiliation. The law is designed to hold perpetrators accountable, regardless of whether the acts occur during times of emergency or conflict.

Given the evidence and constitutional protections against torture, I find that the 1 st respondent's conduct did amount to cruel, inhuman, and degrading treatment, and violated the applicant's rights to personal liberty.

The applicant did not lead any iota of evidence to show that the 2nd respondent was involved in his torture or prolonged incarceration in detention. It would appear the 2nd respondent was merely added as a scare-crow without any basis or allegation of torture of the applicant.

The 2nd respondent did not violate any of the applicant's rights.

# *What remedies are available to the applicant?*

The applicant sought several remedies, including declarations that the respondents violated his rights, general damages, an order for special damages, costs of the suit, and interest. He relied on Article 50(1) of the 1995 Constitution of Uganda, which entitles individuals whose rights have been infringed to seek redress from a competent court.

The Applicant also cited *Osotraco Limited Versus the Attorney General HCCS No. 1380 of 1985 at p.12***,** which held that redress refers to effective redress, and nothing short of it. In addition, he cited *Issa Wazembe Versus Attorney General* to support his claim for general and punitive damages, arguing that he suffered a loss of dignity and was subjected to physical and psychological torture. He sought UGX.

200,000,000 for the violation of his human rights, UGX. 200,000,000 in punitive/exemplary damages, and costs.

Finally, the applicant sought a declaration from the court outlining the respondents' violations of his rights, relying on *Amiran Enterprises Ltd vs Uganda Revenue Case No. HCT -OO-CC- MC- 06-2010*. This case defined a declaration as a statement by the court, based on evidence and the law that describes an existing legal situation.

The respondents argued that the applicant was not entitled to any of the remedies he sought. They argued that he only attached an invoice and receipt from Nsambya Hospital, totaling UGX. 543,100, to his affidavit, but failed to present a doctor's affidavit to confirm the contents of these documents.

The Respondent argued that he did not sufficiently plead or prove damages. To support this argument, they relied **on** *Law Society of Kenya vs Hillary Mutyambali Inspector General National Police Service & 4 others*, which held that parties are bound by their pleadings. They cited *Nasif Mujib &Anor vs Attorney, Civil Suit No. 160 of 2014*, which held that in awarding general damages, courts are guided by what a reasonable person would award in similar circumstances.

They also noted that general damages are awarded for losses that flow naturally from the defendant's actions. In the instant case, they argued that the applicant did not provide any evidence to justify the specific damages he sought and did not prove that his rights had been infringed.

The respondents noted that they presented evidence to demonstrate that the police and the UPDF had a legal mandate to prevent crime and defend the country, respectively. They asked the court to dismiss the application with costs.

#### *Analysis.*

In the matter of *Mukasa and Oyo v. Attorney General* **Misc. Cause No. 247/06.** it is clear that the applicants established a legitimate claim for damages due to the infringement of their constitutional rights. This court acknowledges that such rights are fundamental and non-derogable, emphasizing that any injury to a person's dignity and constitutional protections warrants judicial intervention and appropriate compensation.

Upon review of the submissions and evidence presented before this honorable court, it is evident that the applicant has established a credible claim for the infringement of his constitutional rights. The applicant has demonstrated that he was subjected to inhumane treatment, which compromised his rights to dignity, freedom from torture, and personal liberty as safeguarded by the Constitution. This court recognizes that these rights are foundational and non-derogable, affirming that any infringement warrants judicial remedy.

While the respondents argue that the applicant did not adequately prove his claims or provide sufficient documentation for the alleged damages, this court finds otherwise. Given the gravity of the constitutional violations presented, the applicant is entitled to effective redress. In line with Article 50(1) of the 1995 Constitution of Uganda and jurisprudence that mandates meaningful compensation for rights violations, I find it appropriate to award the applicant UGX 30,000,000 as general damages.

This award serves as both compensation for the injuries sustained and as a reaffirmation of the court's role in upholding constitutional protections and human dignity.

The applicant is awarded costs of this application.

I so Order

*Ssekaana Musa Judge 14th February 2025*