Musasizi Swaibu and Others v Attorney General (Complaint UHRC 8 of 2014) [2019] UGHRC 4 (28 October 2019)


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT HOIMA COMPLAINT NO: UHRC/HMA/08/2014


## DECISION

*[Before: Commissioner Meddie B. Mulumba]*

Musasizi Swaibu (the 1<sup>st</sup> Complainant), Musinguzi Feredi $(2<sup>nd</sup>$ complainant) and Tukwasibwe Calist (the $3<sup>rd</sup>$ Complainant) all residents of Butengi Village, Kibijo Parish, Nkooko Sub County, Kibaale District allege that on $20/02/2014$ they were arrested by Policemen attached to Kakumiro Police Station on allegations of murdering a one Mugarura Justus. Upon arrest they were taken to Kakumiro Police Station where were detained for 2 days before being transferred to Kibaale Police Station

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where they were further detained until $20/03/2014$ when they were produced in Court.

This matter came up for $1^{st}$ time hearing on $28/11/2016$ before Stephen The Respondent was not Basaliza. Commissioner following framed for The issues were represented. determination:-

- I. Whether the Complainants' right to personal liberty was violated by the Respondent's agents? - II. Whether the Respondent is vicariously liable? - available to the anv remedies III. Whether there are Complainant?

Examination in chief was carried on the Complainants. The matter was thereafter adjourned to enable the parties explore amicable settlement. A written proposal by the Complainants was sent to the Respondent on $6/10/2016$ . When the matter came up on 3/03/2017, Commission Counsel Nambi Jashmin Kasujja informed the Tribunal that efforts at amicable settlement had The matter was then reallocated to me for further failed. hearing. The Complainants tendered in Exhibits I and II and closed their case.

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The Respondent did not call witnesses in defence but Mugisa Lydia - State Attorney filed submissions in defence.

$1<sup>st</sup>$ Complainant testified that at around 8:00 $\overline{am}$ $\Omega$ n The $20/02/2014$ while he was at Butengya Trading Centre he was arrested by 8 Policemen. He was arrested together with the $3^{rd}$ Complainant on allegations of murder. Upon arrest they were taken to Kakumiro Police Station where they were detained until 23/02/2014 when they were transferred to Kibaale Police Station.

$2<sup>nd</sup>$ complainant testified that at around 9:00 $\overline{am}$ $\overline{on}$ The $20/02/2014$ he was arrested with six other people from Butenje Town Council on allegations of murder. Upon arrest they were taken to Kakumiro Police Station and detained until 23/02/2014 when they were taken to Court.

complainant testified that at around $9:00$ $3^{\rm rd}$ $\overline{am}$ $\overline{on}$ The $20/02/2014$ he was arrested from Butengye Trading Centre on allegations of murdering Mugarura Justus. He was arrested together with the $1^{st}$ and $2^{nd}$ complainants, Asiimwe Dezi and Noyonzima Emmanuel. Upon arrest they were taken to Kakumiro

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when thev detained until 23/02/2014 were and Police transferred to Kibaale Police Station.

The Complainants tendered in the certified copy of the Lock up register from Kakumiro Police Station Exhibit I. Exhibit I indicates that the Complainants were detained at the Police Station on $20/02/2014$ on allegations of murder vide Serial No CRB/121/14 and detained under 23/02/2014. Exhibit II $1331/14$ which is a certified copy of the Lock up Register from Kibaale Police Station indicates that the Complainants were detained from $23/02/2014$ to $20/03/2014$ .

After considering the evidence on record, I will go head and deadly with each issues separately. "Resm

The right to personal liberty is guaranteed under Article 23(4) (b) of the Constitution of the Republic of Uganda 1995, "the Constitution", which provides that a person who is arrested or detained on suspicion of having committed or about to commit an offence under the laws of Uganda, shall if not earlier released, be brought to Court as soon as possible but in any case not later than forty eight hours from the time of

his or her arrest. The same legal requirement is specifically and explicitly stated in Section 25(1) of the Police Act Cap 303. See: the African Charter on Human and Peoples' Rights Article 6, the Universal Declaration of Human Rights 1948 Article 6; the International Covenant on Civil and Political Rights 1966 Article 9].

the Complainants were in Police Exhibits I and II. From $2310212014$ 20/02/2014 custody from $\frac{5}{07/201}$ 4 until $2\frac{3}{07/2014}$ which is a period of 18 days when the 2 lawful days permissible under Article 23 (4) (b) of the Constitution are deducted 16 unlawful days of detention remain.

In written submission, learned State Attorney pointed out the right to personal liberty is not absolute. Article 23 provides for instances under which this right can be interfered with. The Complainants' were arrested on allegations of murder to help in investigations hence their arrest was justified.

Any deprivation of personal liberty outside the prescribed instances under Article 23 $(4)$ of the Constitution of the Republic of Uganda results in a violation of the right to liberty (Iwolit Dismass and Attorney General personal

Tusiimwe Bruce and Attorney *General IHRC/J/54/2003:* UHRC/FP/25/2005; Byaruhanga Charles and Attorney *General General* UHRC/09/2007; Mbusa Wilson and *Attorney* UHRC/F/151/2003; Uganda vs Robert Sekabira & 10 Others High Court Criminal Case 85 of 2010).

I agree with learned State Attorney that the right to personal can be interfered with. The absolute liberty $i$ s $not$ Complainants were initially lawfully arrested on suspicion of committing murder as per Article 23 (c) of the Constitution. Their arrest was therefore justified however their detention beyond 48 hours was contrary to Article 23 $(4)$ (b) of the Constitution. However in the instance case the Complainants were in unlawful detention for 16 days therefore their right to personal liberty as protected under Article $23$ (4) (b) of the Constitution was infringed upon by the Respondent's agents for 16 days.

## I therefore hold Issue I in the affirmative.

Having held Issue I in the affirmative, I now turn to Issues II and III which I will handle concurrently.

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Complainant was in illegal detention for 16 days before he was taken to Court. I deem a sum of UGX $3,200,000/-$ (Uganda Shillings three million two hundred thousand only) to each Complainant as general damages for the violation of their right to personal liberty as protected under Article 23 (4) (b) of the Constitution.

## **ORDERS**

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the $1<sup>st</sup>$ Complainant - $3, 200, 000/ \mathbf{of}$ **UGX** (Uganda Musasizi Swaibu $\mathbf{a}$ $sum$ Shillings three million two hundred thousand only) $\overline{as}$ for the violation of his right to general damages personal liberty as protected under Article $23$ (4) (b) of the Constitution. - 3. The Respondent is ordered to pay to the $2^{nd}$ Complainant -3, 200, 000/ $-$ (Uganda $\overline{of}$ $\mathbf{UGX}$ Feredi $\mathbf{a}$ $\mathbf{Sum}$ Musinguzi Shillings three million two hundred thousand only) $\overline{a}$ S for the violation of his right to general damages personal liberty as protected under Article $23$ (4) (b) of the Constitution.

- 4. The Respondent is ordered to pay to the $3^{rd}$ Complainant sum of $UGX$ 3, 200, 000/- (Uganda Tukwasibwe Calist a Shillings three million two hundred thousand only) $as$ general damages for the violation of his right $to$ personal liberty as protected under Article 23 (4) (b) of the Constitution. - 5. The said total sum of UGX 9,600,000/- (Uganda Shillings nine million two hundred thousand only) shall carry interest at 10% per annum calculated from the date of the decision until payment in full.

Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within 30 days from the date hereof.

I so order.

$\circ \cdot$ Dated at HOIMA this ....... day of 2019

MEDDIE B. MULUMBA PRESIDING COMMISSIONER

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