Muhanuzi and Another v Attorney General (Complaint No: UHRC/FTP/27/2011) [2019] UGHRC 28 (6 February 2019)

Full Case Text

# **THE REPUBLIC OF UGANDA**

### **IN THE UGANDA HUMAN RIGHTS COMMISSION**

**HOLDEN AT FORT PORTAL COMPLAINT NO: UHRC/FTP/27/2011**

**MUHANUZI APOLLO]:::::::::::::::::::::::::::::::::::::::::::::::::::::::** 1st **COMPLAINANT**

**MATIYA IRUMBA** 2nd **COMPLAINANT**

**and**

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

# **BEFORE PRESIDING COMMISSIONER HON. DR. KATEBALIRWE AMOOTI WA IRUMBA**

## **DECISION**

The first complainants (Cl), Muhanuzi Apollo alleged that he was arrested on 28th December 2010 by the Gombolola Internal Security Officer (GISO) of Kichwamba Sub-county on the allegation of having connections with some wrong people, and then taken by the same GISO to the office ofthe District Internal Security Officer (DISO), Kabarole District. C2, Matiya Irumba also alleged that on 29th December 2010, he was also arrested from Buhinga Hospital and taken to the DISO's office where he joined Cl. That both of them were then taken to Kagote Police Post where they were detained for two days. That on the third day, the DISO of Kabarole picked them up from Kagote Police Post and took them to Kololo Army Barracks in Kampala, where they were further detained for sixty two days.

The two Cs therefore prayed to the Tribunal to order for compensation to them by the Respondent (R) for the alleged violation oftheir right to personal liberty.

R through their representative Counsel (RC), State Attorney Lubowa Rachel denied liability and opted for putting up a defense in this matter.

#### **ISSUES:**

The issues to be resolved by the Tribunal are:

- 1. Whether Cs' right to personal liberty was violated by State agents. - 2. Whether R is liable for the violation. - 3. Whether Cs is entitled to any remedy

Before I resolve the aforementioned issues, I would like to point out that from the record ofthe Tribunal proceedings on file, this complaint was initially lodged by Cl. However, C2 wasjoined as the second C without any objection raised by RC, and basing on Rule 11 of the UHRC (Procedure) Rules 1998, since he was also a victim ofthe alleged violation in this matter.

Secondly, this matter had been pending amicable settlement since 8th April, 2014, the day when Cl, C2 and CW1 all testified and were all cross examined. On 24th November, 2014 the two Cs accepted RC's offer to compensate them with Ug. Shs. 4,000,000/= each. The matter was thereafter adjourned several times at the prayers made by RC, to allow them time to settle it. However, RC failed to honour this promise until 12th June, 2018 when the matter was adjourned for a decision.

Despite the aforementioned offer made by RC to settle the matter amicably, the two Cs still retained the duty of proving their case against R to the satisfaction of the Tribunal in case this became necessary, and to do so as required under Section 101 (1) of the Evidence Act Cap 6, which states that:

Whoever desires any court to give judgment as to any

legal right or liability dependant on the existence offacts which he or she asserts must prove that the facts exist.

And under Section 102 ofthe same Act, which also states that:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

## **Issue 1: Whether Cs' right to personal liberty was violated by State agents.**

Cl testified that on 28th December, 2010 at around 6.00 p.m., GISO Kagaba of Kichwamba Subcounty went to his home with another person whom he did not know and informed him that he was needed by the Chairman of Kabasanda Village. That he was taken to Mzee Tibeyalira's home where he found a vehicle in which there were two men he did not know. That the GISO informed the said two men that Cl was Apollo, and confirmed this by removing Cl's phone from him. That he was then arrested and taken to the GISO's office at Boma in Fort Portal where they found the DISO who asked him about Muhanuzi, the son of Florence Nyakaisiki of Kyanika and Mugisha Patrick of Karugute. That he replied that he did not know these people. That the DISO then got C's phone from GISO, searched through the phone book and when he found the names of C2, he questioned Cl why he had denied ever knowing C2. That he (Cl) defended himselfsaying that C2 was the son ofEdard Ngeso and his mother was Birungi Jamid, and that it was Mugisha Ruhimbana that he knew and not Patrick. That he was then taken to Kagote Police Post where he spent three days detained without any food.

Cl testified further that he was removed from the detention cell on the third day by a certain policeman, and put in a car where he found his brother, C2 handcuffed. That the policeman removed the handcufffrom one of C2's arms and put it on Cl's ami thus, handcuffing the two of them together. That they were then taken to Kololo Army Barracks where they found many soldiers. That they were detained there for two months and two days, and were given one meal per day. That on 2nd March 2007, they were released because they had no case to answer, and given Shs.30,000= each for transport. Cl also claimed that due to the long detention, his incomplete house was damaged and his 11 goats were missing by the time he returned home. He added that his children were also not going to school.

The lock-up register from Kagote Police Post was admitted with RC's consent as C1X1.

During cross-examination, Cl reiterated that himself and C2 were detained at Kololo Army Barracks for 62 days, and that their names were recorded in a black book and on their release, the money given to them was for transporting them back to Fort Portal.

C2 testified that on 28th December, 2010 as they were at their home, the GISO of Kichwamba Sub-county and four other men arrested Cl and took him to Mzei Tibeyalira's home. That himself and some other people followed them, and they saw Cl being driven away. That the following day, operatives from the Local Defence Unit (LDU) went to his home to arrest him too but they found him seriously sick and they therefore left him. That later on when he was taken to Buhinga Hospital for treatment, the police arrested him from there and took him to the office of DISO at Boma. That the DISO searched his phone book, after which he detained him at Fort Portal Police Station. That the following morning, he was called out of the cell, handcuffed and put in a vehicle that was driven by the DISO to Kagote Police Post. That they brought Cl and he was also put in the vehicle, and the two of them were taken to Kampala at Kololo Army Barracks. That here they recorded statements, after which they were detained for two months. That they were not allowed to receive any visitors, and they were also not told why they had been detained. C2 added that he could not remember the date when they were released but it was in March 2011, and they were not given any documents to show that they were detained and released from there. That they were given Shs.60,000= together, for transport back to their homes.

During cross-examination, C2 reiterated that he had recorded a statement at Kololo Army Barracks, adding that he could not recall what he recorded, and that he knew he was at Kololo from other detainees who gave him this information.

The two Cs' witness (CW1), Benezeri Tibeyalira testified that the two Cs were his sons. That on 28th December, 2010 in the evening at around 6.00 p.m, and as he was at his home in Kabasanda, he saw two men in a vehicle and coming together with Cl. That they introduced themselves to him saying that they were the GISO from Kichwamba and the DISO from Kabarole. That they informed him that Cl had issues he had to clarify, and after this they put Cl in the back of the car and took him away. That on the following day, two Home Guards came and advised him to go to the DISO's office. That since at that time C2 was at Buhinga Hospital, he decided to leave him there and first go to the DISO's office to inquire about Cl. That DISO told him that C2 had been arrested. That the next day, he returned to DISO's office but did not find Cl and C2 there. That after seven days he was informed by DISO that Cl and C2 had been taken to Kampala. That he kept checking with the DISO for about two months but after about two months and two days, he received a telephone call from Cl telling him that they were on their way coming back home. That they indeed returned home on that same day and they were looking normal without any injuries.

During cross-examination, CW1 reiterated that on the day C2 was arrested, he did not see Cl because he (Cl) had already been arrested and was recording his statement where he was detained. That when DISO informed him later on that Cl and C2 had been taken to Kampala, he believed what DISO told him because he had always believed that the investigations they were carrying out would prove that his sons had done nothing wrong.

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda. It is not an absolute right since it can be derogated from when any ofthe circumstances listed in Article 23(1) of the same Constitution exist: for example, where there is reasonable suspicion that the person arrested has committed or is about to commit a criminal offence.

However, the law prohibits arbitrary arrests and detention, as the Constitution of Uganda sets out procedural guarantees to prevent the abuse of persons under arrest and detention. Thus, Article 23(4) (b) requires that anyone arrested upon reasonable suspicion that he or she has committed or is about to commit a criminal offence, must if not earlier released be produced in court within 48 hours.

Cl tendered in the certified police lock up register from Kagote Police Post, which revealed that he had indeed been detained there on Tuesday 28th December, 2010 and then transferred to Kampala on 30th December, 2010. It also indicated that Cl was detained for safe custody.

The two Cs clearly stated that they were taken to Kampala together and also released on the same day after sixty-two days. This was further corroborated by CW1 who said that DISO had informed him that his sons had been taken to Kampala, adding later on that he took two months and two days without hearing from Cl and C2 after they had been taken to Kampala.

RC's cross-examination did not shake the evidence that was adduced by the two Cs, since their oral evidence was credibly corroborated by documentary and CWl's evidence. In addition to this, R's side failed totally to adduce any defense evidence to rebut the evidence that was adduced by the two Cs. This, combined with their voluntary offer to settle the matter amicably at the time they were expected to put up a defense, is tantamount to voluntary admission by R's side ofthe allegations made by the two Cs.

The two Cs' detention was initially lawful as it was intended to enable the police carry out their own investigations. However, their detention at Kagote Police Station and at Kololo Army Barracks from 28lh December, 2010 to 2nd March 2011 thus, a total of 64 days without being taken to court or being granted bail, was illegal as it was done contrary to Article 23 (4) of the Constitution of Uganda. However, the forty-eight hours or the equivalent two days allowed by the Constitution for lawful detention of suspects before they are released on bond or taken to court must be taken into account thus, leavening 62 days of illegal detention for Cl and 60 days for C2, in this respect.

Therefore, I find on a balance of probabilities that the right of both Cl and C2 to enjoy their personal liberty was violated by the State agents who detained them illegally, and who are also R's Clients in this matter now under my resolution.

Accordingly, the claim made by the two Cs in this regard succeeds.

# **Issue 3: Whether R is liable for the violation of the two Cs' right**

Article 119 of the Constitution of Uganda provides for the functions of the Attorney General to include among others, representing the Government of Uganda in courts or any other legal proceedings to which the Government is a party. For this reason therefore, the Attorney General was rightly identified and summoned as the Respondent in this complaint.

I have already concluded and ruled that the police officers and the soldiers who violated the said right of the two Cs earned out their wrongful and illegal actions while they were in the process of carrying out their official duties.

Furthermore, since R never adduced any evidence to prove the contrary, and instead opted to settle the matter amicably, I have decided to go by the principle of law that was well captured in the case of MUWONGE Vs ATTORNEY GENERAL (1967), (EA) 17, where it is stated that "once the actions or omissions of the servant have been proved to have been part of the process ofthe servant's duty for which he was employed, then they render the master liable, even though the same actions or omissions were carried out contrary to the orders or instructions of the master, and even if the servant acted deliberately, wantonly, criminally, negligently, or contrary to the specific instructions or orders of the master, or for his or her own benefit, gain or advantage, as long as what the servant carried out or did was merely a manner of carrying out or doing what that servant was or is employed to do or to carry out."

It therefore follows that I must now find and hold the Attorney General to be vicariously liable for the violation ofthe two Cs' right as already established and ruled in the foregoing discussion on issue number 1.

Accordingly, the claim made by the two Cs in this respect also succeeds.

# **Issue 4: Whether the two Cs' are entitled to any remedy.**

Article 50 (1) of the Constitution provides for effective remedies to be ordered by competent national tribunals for victims whose fundamental rights guaranteed for them by the same Constitution have been violated. In addition to this, under Article 53 (2) the Constitution also gives powers to the Uganda Human Rights Commission, and therefore to this Tribunal, to order payment of compensation or any other remedy or redress, where it has been satisfied that there has been an infringement on anybody's human right or freedom.

I am therefore now evoking these powers.

Since the two Cs have proved to my satisfaction that their aforementioned right was violated by the said State agents, they are therefore entitled to receive compensation from R by way of damages which I must now asses and determine.

I have already ruled that Cl's right to personal liberty was violated for a total of 62 days and that of C2 for a total of 60 days.

In ABDUL MAKA Vs JINJA DISTRICT COUNCIL, JJA HCCS No.60/2000 (unreported) where the plaintiff was illegally detained for seven days, Justice Yorokamu Bamwine awarded him Ug. Shs. 2,000,000/= for the violation of his right to personal liberty.

And in the case of ERIC BOSCO AKERA Vs ATTORNEY GENERAL, UHRC/G/76/2001, delivered in 2007 and in which the complainant was illegally detained for 43 days, former Commissioner Mariam F. Wangadya sitting at Gulu, applied the same rate that was used by Justice Yorokamu Bamwine in the afore-cited case, and awarded the complainant Ug. Shs. 12,000,000/= as being adequate compensation for the violation of his right to personal liberty.

From the above two precedents, it is clear that the complainants involved were each awarded approximately Ug. Shs. 285,000/= per day spent in illegal detention.

Therefore, in deciding my awards to the two Cs firstly, I am taking into consideration the aforementioned daily rate used in the two precedent cases as well as the value of money at the time the awards in those two cases were made as compared to the value of money as it stands today twelve years later (the case of MATIYA BYABALEMA & OTHERS Vs UGANDA TRANSPORT CO. SCCA No. 10/93 refers).

Secondly, I must also take into consideration the time lag from December 2010 when the violation against the two Cs was committed up to now when the matter is resolved thus, a total of nearly eight years of delayed justice. In addition, I take into account the long suspense of four years into which R's side kept the two Cs expecting to have the matter settled amicably but only to end up disappointing them.

On the other hand, I must also not be oblivious of R's limited capacity to execute the orders given to them by not only this Tribunal but also, courts of law, given the current limited level of government revenue.

Accordingly, I am adjusting the aforementioned daily rate to Ug. Shs. 300,000/= per day and which I am applying to determine the quantum of the awards for Cl who was detained illegally for 62 days and C2 for 60 days.

I therefore award Cl, a sum of Ug.sh. 18,600,000= (shilling eighteen million, six hundred thousand only) and C2, a sum of Ug. sh. 18,000,000= (shillings eighteen million only), as general damages in compensation for the violation of their right to personal liberty as already determined and ruled in this decision.

I am therefore ordering as follows:

# **Orders:**

- 1. The complaint is allowed. - 2. R (Attorney General) is ordered to pay to Cl, Muhanuzi Apollo a total sum of Ug. sh. 18,600,000/= (Uganda shilling eighteen million, six hundred thousand only) as general damages in compensation for the violation of his right to personal liberty. - 3. R (Attorney General) is also ordered to pay to C2, Matiya Irumba a total sum of Ug.sh. 18,000,000/= (Uganda shilling eighteen million only) as general damages in compensation for the violation of his right to personal liberty. - 4. Interest at the rate of 10% per annum to be paid on the sum awarded to each complainant as stated in orders 2 and 3 above, calculated from the date of this decision until payment in full. - 5. Each party to bear their own costs.

6. Either party may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision if not satisfied with the decision ofthis Tribunal.

So it is ordered.

**DATED AT FORTPORTAL ON THIS DAY**

**PRESIDING COMMISSIONER**