Nakamatte v Uganda (Miscellaneous Application 22 of 2024) [2024] UGHCICD 11 (5 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (INTERNATIONAL CRIMES DIVISION) MISCELLANEOUS APPLICATION NO. 0022 OF 2024** 5 **(ARISING FROM HCT-00-ICD-PT-0001-2023)**

| NAKAMATTE AIDAH<br>… | APPLICANT | |----------------------------------------|-----------| | VERSUS | | | UGANDA …………………………………………………… RESPONDENT | |

**BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

## **RULING**

#### **Introduction**

- 15 This Ruling is in respect of an Application to nullify a charge brought by way of a Notice of Motion under Articles 24, 28 (11), 44 (a) & (c) and 50 of the Constitution of Uganda, 1995; Sections 3 (1-2), 4, 6, 8, 9, 11, 14 and 15 of the Human Rights Enforcement Act 2019; Sections 2, 3, 4, 5, 6, 7, 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 20 of the Judicature (Fundamental & Other Human rights & Freedoms) (Enforcement Procedure) Rules, 2019 for the following: - a) A declaration that the conduct and actions of the Respondent violated, contravened, infringed upon and or threatened the Applicant's non derogable right and freedoms from torture, cruel, inhuman and degrading treatment 25 guaranteed under Article 24 and 44 (a) of the Constitution; - b) A declaration that the process leading to the initiation of criminal proceedings against the Applicant violated, contravened, infringed upon and threatened

the Applicant's fundamental rights and freedoms to liberty, just and fair treatment guaranteed under Articles 23, 42 and 45 of the Constitution;

- c) An Order acquitting the Accused from any criminal liability arising out of the charge made against the Applicant; - 5 d) A permanent injunction restraining the respondent or any state agency from arresting, detaining or prosecuting the Applicant in relation to facts similar to or arising out of the charge made against the Applicant; - e) An Order awarding the Applicant aggravated, exemplary and general damages for anguish imprisonment and suffering caused by the Respondent; - 10 f) An Order awarding the Applicant costs of the Application; and - g) An Order awarding interest on the costs and damages.

## **Representation**

The Applicant was represented by Mrs. Sylvia Namawejje Ebitu of M/S Asiimwe,

15 Namawejje & Co. Advocates while the Respondent was represented by Ms. Lillian Omara, Chief State Attorney from the Office of the Director of Public Prosecutions.

## **The Application**

The grounds upon which this Application is premised are contained in the Affidavit 20 of Nakamatte Aidah (**the Applicant**) and they can be summarised as follows:

That the Applicant stands charged with the offence of terrorism contrary to Section7 (1) (a) and 2 (b) & (d) of the Anti-Terrorism Act, 2002 (as amended); that the Applicant was arrested on 9th February 2023 from Mityana District and detained at 25 the Criminal Intelligence Headquarters at Kololo until when she was produced in Court on the 13th day of March 2023; that as soon the C. I soldiers reached her home, they started beating and slapping her in the ears; they got a solder wire from their

car and beat her without telling her the reason why she was being beaten; that two men came with one Alex alias Kasappuli, a C. I officer that shot her husband who died immediately; that Alex made a phone call and informed someone that he had fulfilled what he had been asked to do after he had shot her husband dead; that Alex 5 got a solder wire from their car and hit her hardly on the head that it became swollen as a result of the torture that was inflicted on it; that the area of the brain was damaged so much that since then up to now, she cannot stand for a long period; that Alex heavily kicked her on the rib cage of her right side which caused her a lot of pain and since then she is unable to sleep on her right-hand side as a result of the 10 injuries that were afflicted on the ribs.

The Applicant further averred that when Alex kicked her on her ribs, he was trying to force her to sleep with her dead husband so that he could also shoot her in the process; that Alex came with another man who put her on gun point and took money 15 from her amounting to UGX 630,000 (Uganda Shillings Six Hundred Thirty); that during the days she spent at C. I torture chambers, Alex and his right hand men would tie her hands with handcuffs leaving marks on her hands; that a one Captain Sylus beat her from head to toe with a baton mainly targeting her joints and spinal cord and as a result some of her nerves were badly damaged; that as a result of this cruelty, 20 her fabula bone near the ankle of her left leg got broken and is still swollen; that Sylus and other C. I men wanted her to confess before video camera that she is a terrorist and whenever she failed to do so, they would beat her and force her to gulp litres of water saying that it would help her clear her throat.

25 It was her averrement that the C. I did a lot of nasty things to her in order to comply with their statements that she was blind folded from her home to Kololo; that due to the beatings, she broke one of the bones of the left leg and also lost four toe nails of

her left leg; that a C. I woman known as Christine called two men who tortured her by beating her until she became unconscious; that upon regaining consciousness, she was on drip but later Christine put her in a saloon car and took her to a safe house in Kireka; that Alex sent for her from the safe house where they usually kept her every

5 after every torture session and took her to a room where she found two men also belonging to C. I; that in that room, Alex got hold of a metal pipe and he ordered her to undress completely while kicking her too; that when Alex intended to strike her head, she protected her head with her hands and the metal pipe landed on her right hand breaking the radius bone near the wrist and that since then to date, the bone has 10 never cured well and that she is still in pain; that Alex also brought a man in the room where she was and commanded him to have sexual intercourse with her and when they both refused to conjugate, the man was badly beaten until blood started

oozing out of his body through different parts and they were both forced to roll in

the blood several times while naked until the man fainted.


The Applicant also averred that Alex and the C. I man took her money, locked her in the room with them and they heavily kicked her on the right cheek and she immediately lost a tooth; that when she spat the tooth out, the C. I man angrily told her to swallow it and remove the blood she had spat on the floor with her tongue; 20 that on different occasions, a man known as Apolo forced her to sign on documents that she had no idea about and sometimes they were plain papers; that even after they had broken her hand, Apolo would tell hold the area where the fracture is and he would tell her to try and write both names on the document; that a woman called Nakigudde Gorrett who told her that she was working with Kibuli Police Station 25 brought written documents to her and wanted her to sign them but whenever she requested that the documents are read to her before she signs them, Gorrett refused and would instead beat her and twist her fractured arm and leg and force her to sign

the documents; that a man known as Geoffrey picked her from the safe house on 10th March at around midnight, blind folded her and took her to a certain room where she found three men in black clothes with their faces masked leaving only their eyes and they had surgical gloves and a black bag; that the Applicant fainted the moment she 5 saw them and when she regained consciousness, Geoffrey blindfolded her and led

her back to the room.

On 11th March 2023 at 1;00 pm, Geofrey blindfolded her and took her to a certain room where she found three men, one of them was wearing a mask that only left the 10 eyes visible. They gave her two papers that had the names of people and he asked her to read them carefully as he recorded her voice; that whenever she failed to read a particular name correctly, he paused the recorder and would correct it for her and then continue recording; that she was also shown videos of a massacre which terrified her and to date, she still sees visions of those videos in her mind; that she 15 was forced to drink something they called drinking water though it wasn't and she spent two consecutive days with a stomach ache; that she was forced to sign a charge and caution statement involuntarily; and that it is in the interest of safeguarding the right to a fair hearing, freedom from torture, cruel and degrading treatment and substantive justice that this Application should be allowed.

In reply to the Application, the Respondents filed a total of four (4) Affidavits in Reply which can be summarised as follows:

The first Affidavit in Reply was deponed by No. 71912 D/CPL Amutusimiire 25 Bridget c/o Uganda Police Force who stated that: she is a police Officer in the Uganda Police force attached to the Crime Intelligence Headquarters under Tracking and that she was one of the Officers that handled terrorism case CID HQTRS E/002/2023; that she has read the Applicant's Notice of Motion and supporting Affidavit and understood the same, and that she has found the supporting Affidavit to have falsehoods; that following intelligence that the Applicant and others were involved in terrorism activities, the Applicant was arrested on 9th February 2023

- 5 from Katakala Mityana District by a joint operation team comprising Police and Chieftaincy of Military Intelligence, (now Defence Intelligence and Security) in the presence of her landlord and that she was one of the officers that arrested the Applicant; that the Applicant resisted arrest and there was an altercation between her and the security agencies that eventually effected her arrested and it was from the - 10 altercation that the Applicant sustained minor physical injuries; that the Applicant's husband, Sulaiman Segawa Bisaaso was killed during the arrest as he was attempting to disarm one of the arresting officers; that upon arrest, the Applicant was searched and found with money which was taken from her as evidence and handed over to the Investigating Officer to be exhibited; that the Applicant was taken to Mityana Police - Station and on 10th 15 February 2023, the Applicant was taken to Crime Intelligence at Kololo, a gazetted holding centre for suspects who are accused of committing very serious crimes, where she was detained as investigations continued; that on 15th February 2023, the Applicant was transferred to SID Kireka detention Facility for detention; that the Applicant was not subjected to cruel, inhuman, degrading and 20 torturous treatment when she was arrested and while she was in detention at Crime Intelligence Kololo; and that the physical injuries allegedly sustained by the Applicant were not inflicted by any Police Officer or Military Officer during arrest and detention at Mityana Police Station and Crimes Intelligence Kololo. - 25 The second Affidavit in Reply was deponed by No. 70273 D/CPL Kusemererwa Charity c/o Uganda Police Force who stated that: she is a Police Officer of the rank of Corporal and the Cell Guard attached to the Directorate Crimes Intelligence in the


Uganda Police Force; that she read the Applicant's Notice of Motion and the supporting Affidavit and understood the same, and found the supporting Affidavit to have falsehoods; that she received the Applicant on 10th February 2023 at Crimes intelligence Kololo and held her there; that when she received the Applicant, the

- 5 Applicant had minor injuries on her leg and the Applicant told her that she sustained those injuries during arrest; that during her detention at Crime Intelligence, the Applicant was never subjected to cruel, inhuman, degrading and torturous treatment including: beating her with among other things, wires, batons and metal pipe, slapping, kicking, twisting of arms and legs resulting in physical injuries on parts of - 10 her body and psychological torture; that during the Applicant's detention at Crimes Intelligence, the Applicant did not acquire any physical injuries; that the Crime Intelligence in Kololo where the Applicant was initially held during investigations is a gazetted place for holding suspects who are accused of committing very serious crimes; that the Applicant was later taken on 15th February 2023 to SID Kireka Detention Facility; and that the Applicant was produced in court on 13 15 th March 2023 - through Crime Intelligence.

The third Affidavit in Reply was deponed by SP Walugembe Nakibinge c/o Uganda Police Force who stated: that he is a Superintendent of Police and the In-Charge 20 Kireka Detention Facility attached to the Directorate Crimes Intelligence in the Uganda Police Force; that he read the Applicant's Notice of Motion and supporting Affidavit and understood the same but found the supporting Affidavit to have falsehoods; that as the In-Charge Police Cells at SID Kireka, he received the Applicant on 15th February 2023at SID Kireka , and detained her on the strength of

25 Police Form 94, Detention Order; that SID Kireka is a gazetted place for detaining suspects who are accused of committing very serious crimes; that when he received the Applicant, she had minor injuries on her leg and the Applicant informed him that she had sustained the injuries during her arrest; that during her detention at SID Kireka, the Applicant was never subjected to cruel, inhuman, degrading and torturous treatment including beating her with among other things, wires, batons and metal pipes, slapping, kicking, twisting of arms and legs resulting in physical injuries

5 on parts of her body and psychological torture; that during her detention at SID Kireka, the Applicant did not acquire any physical injuries; that soldiers are not allowed in SID Kireka Detention Facility and so the Applicant's assertions that she was tortured by soldiers while she was in detention is untrue; that the Applicant was produced in court on 13th March 2023; and that it is in the interest of justice that this 10 Application be dismissed and the trial of the Applicant proceeds fast to its logical

conclusion.


The fourth Affidavit was deponed by D/SP Harriet Kusiima c/o Uganda Police Force who stated: that she is a detective attached to Nateete Police Division but was one 15 of the detectives that was assigned to investigate the Terrorism case CID HQTRS E/002/2023 involving the Applicant; that she read the Applicant's Notice of Motion and supporting Affidavit and understood the same but found the supporting Affidavit to have falsehoods; that the Applicant was not subjected to cruel, inhuman, degrading and torturous treatment when she was arrested and while she was in 20 detention; that upon arrest, the Applicant was searched and found with money which was taken from her as evidence and exhibited; that a charge and caution statement was obtained from the Applicant voluntarily; that the Applicant was medically examined on Police Form 24 on 13th February 2023 after obtaining her charge and caution statement; that the haematoma and swelling noted on police Form 24 25 resulted during the fracas that occurred during the arrest of the Applicant when she resisted arrest; that the Applicant was produced in Court through Crime Intelligence on the 13th of March 2024 on charges of terrorism; that for all the time she interacted with the Applicant during the investigation of the case, the Applicant did not have physical injuries relating to the torture she alleges and she did not complain about the same; and that it is in the interest of justice that this Application be dismissed and the trial of the Applicant proceeds fast to its logical conclusion.

### **Issues**

- 1. Whether the Applicant's non derogable rights guaranteed under Article 44 of the Constitution were infringed upon and or threatened; and - 2. What remedies are available to the parties?

During the submissions, the Respondent raised a preliminary objection and contended that the Applicant sued a wrong party. I will first deal with the Preliminary

Objection before resolving the above stated issues.


- 15 While relying on Section 10 of the Government Proceedings Act, Section 10 of the Human Rights Enforcement Act, Cap. 12, Section 2 (r) (v) and (vi) of the Civil Procedure Act, Cap. 282, the case of *Dan Alinange versus Director of Public Prosecutions of HCCD Miscellaneous Cause No. 0167 of 2017* which relied on the case of *Charles Harry Twagira versus Attorney General & Another SCCA No.* - 20 *0004 of 2007*, Counsel for the Respondent submitted that the right party to be sued in such an Application is the Attorney General and not Uganda which is represented by the Director of Public Prosecutions. That torture allegations are against Police Officers and Military Officers who are Government Officers as per the Human Rights Enforcement Act and the Civil Procedure Act. That the Director of Public - 25 Prosecutions is a Government Department and not a body corporate with powers to sue or be sued which makes this suit incompetent and entertaining it would amount to an illegality.

In response to the Preliminary Objection, Counsel for the Applicant while citing Article 126 (1) (e) of the 1995 Constitution of the Republic of Uganda, Order 98 of the Civil Procedure Rules and the case of *Patrick Okiring and Another versus the*

- 5 *Republic Communication 339/2007* contended that the Application was instituted against the Government of Uganda and the body directly mandated to represent the Government in such matters; that the Respondent's Preliminary Objection is a mere technicality which does not warrant the dismissal of this Application; that if the issue arose at the level of effecting service then the Applicant can, with leave of Court - 10 serve the right department but that the Preliminary Objection should not render the whole Application nugatory due to a mere technicality; that Court should find this point of law without substance and in the interest of justice, guide on how to proceed with the matter.

$$\overline{C}$$

# 15 **Court's determination**

Section 10 of the Government Proceedings Act Cap. 287 provides that: **"***Civil proceedings by or against the Government shall be instituted by or against the Attorney General***." [Emphasis Mine]**

- 20 From the reading of the Applicant's Affidavit in Support of the Application and the submissions of her Counsel, I find that the alleged torturous acts and/or inhuman and cruel acts that she alleges were inflicted on her by officers of the Uganda Police and officers at Crimes Intelligence, Kololo. According to Section 3 of the Government Proceedings Act, Cap. 287 and Section 4 of the Law Reform (Miscellaneous - 25 Provisions) Act, Cap. 289, the said officers are employees and/or agents of the Government of the Republic of Uganda. They are not employees of the Office of the

Director of Public Prosecutions (ODPP). As such, the ODPP is a wrong party to sue in this instance.

Without prejudice to the foregoing, even if the alleged acts were committed by an 5 officer from the ODPP, it would still be wrong to sue the ODPP because the ODPP, just like Uganda Police is an agent of the State and as already stated, it is only the Attorney General that can be sued for any atrocities committed by the agents of the State while in their course of duty.

10 Considering the case of *Dan Alinange versus Director of Public Prosecutions of HCCD Miscellaneous Cause No. 0167 of 2017* which relied on the case of *Charles Harry Twagira versus Attorney General & Another SCCA No. 0004 of 2007*, that was cited by Counsel for the Respondent, I find that it is now trite that the Office of the Director of Public Prosecutions (ODPP) cannot sue or be sued because Article 15 120 of the Constitution of the Republic of Uganda, 1995 (as amended) which provides for the appointment and functions of the ODPP does not establish it as a body corporate with powers to sue or be sued. As such, I agree with Counsel for the Respondent that this Application is incompetent.

20 In the case of *Wagabaza Valantin versus Olira Charles & Another, Civil Suit No. 0146 of 2017* (High Court, Jinja) which cited with approval the cases of *Kasirye Byaruhanga & Co. Advocates versus Uganda Development Bank SCCA No. 0002 of 1997* and *Mulindwa George William versus Kisubika Joseph SCCA No. 0012 of 2014*, it was held that Courts have observed that Article 126 (2) (e) is not a magic 25 wand in the hands of a defaulting litigant. It should be applied "subject to the law." That this clause is not a licence for ignoring existing laws. I therefore, find that

Counsel for the Applicant ignored the existing or core laws that govern Applications of this nature when she chose to sue the wrong party.

In light of the above, I take note with much concern that Counsel for the Applicant 5 was inattentive especially to the law while lodging this Application and now seeks this honourable Court to treat all the deficiencies noted above as mere technicalities. Unfortunately, I do not find anything as a mere technicality in this Application.

This Application should have been disposed of at this stage since it is incompetent.

10 However, in the spirit of dispensing justice, I will proceed to determine the Application on its substance.

## **Resolution of Issues**

# **Issue 1:** *Whether the Applicant's non derogable rights guaranteed under Article* 15 *44 of the Constitution were infringed upon and or threatened.*

Counsel for the Applicant while relying on Article 44 of the Constitution of the Republic of Uganda, 1995; Section 11 of the Human Rights Enforcement Act, Cap. 12; Sections 2, 7 (2), 14 (1), 15 and the Second Schedule of the Prevention and Prohibition of Torture Act, Cap. 130; and the cases of *Dr. Kizza Besigye & Others* 20 *versus Attorney General, Constitutional Petition No. 0007 of 2007; Union Trade Centre LMD versus Attorney General of the Republic of Rwanda, East African Court of Justice Appellant Division Appeal No. 0002 of 2015;* and *Agaba versus Attorney General & 3 Others, High Court Civil Suit No. 0247 of 2016*, submitted that: the Applicant has adduced evidence by way of Affidavit to prove that her non 25 derogable rights were violated; the Applicant was detained in Uganda People's defence Forces Criminal Intelligence premises unlawfully until produced in Court; the Applicant was subjected to cruel, inhuman , degrading and torturous treatment which included severe beatings with a metal pipe, batons, solder wires upon which she sustained physical injuries on her body, psychological torture, trauma, physical pain and was also forced to sign documents that were later disclosed as a charge and caution statement incriminating her.

In response, Counsel for the Respondent while relying on the cases of *Nsereko Musa versus Attorney General & others HCCD Miscellaneous Cause No. 0386 of 2020; Luyenje Najjimu & 2 Others versus Uganda, Criminal Application Nos. 10, 12, 13 of 2023;* and *Tuwamoi versus Uganda [1967] EA 84*, contended that the Applicant 10 was neither tortured nor subjected to cruel, inhuman or degrading treatment during arrest, detention, investigation and production in Court. That the alleged torture has not been proved by the Applicant on whom the burden of proof lies; that according to the Affidavits in Reply of the Respondent, the Applicant got injured during the fracas between her and the security agencies when she resisted arrest and the injury was identified by Dr. Bwambale during her the medical examination on 13th 15 February 2023; that it is untrue that the Applicant was detained in Uganda People's Defence Forces Criminal intelligence premises unlawfully until produced in Court. Instead that the Applicant was held at Crime Intelligence Kololo from 10th February 2023 to 13th February 2023, then transferred to Special Investigations Division Detention Facility in Kireka on 15th February 2023 to 13 20 th March 2023 and then produced in Court; that the Applicant has not produced any cogent evidence to prove that she was tortured and subjected to cruel, inhuman and degrading treatment and must prove that she actually sustained grievous physical and psychological harm; that the torture, cruel and inhuman and degrading treatment alleged by the Applicant 25 is indeed so intense that it could not have gone unnoticed, especially by independent

persons that interacted with her; that the Applicant was examined by a doctor on 13th February 2023, four days after her arrest and the doctor did not find any injuries, abnormalities, medical conditions and scars associated or consistent with the Allegations in the Applicant's Affidavit in Support of the Notice of Motion; that the Applicant also did not complain to the doctor that she was tortured or subjected to cruel, inhuman and degrading treatment and the nature of injuries as she stated in

- 5 her Affidavit in Support; that if the Applicant had indeed been tortured and subjected to cruel, inhuman and degrading treatment as she alleges, the Magistrate before whom she appeared on 13th March 2023 would have noticed and taken note of it in the Court record, in the least; that the Applicant did not even raise it before the Magistrate when the Applicant first appeared before him or her and that this implies - 10 that the torture Applications are an afterthought intended to escape prosecution for the offences the Applicant is indicted for; and that the issue of whether a charge and caution statement amounting to a confession was made voluntarily or involuntarily and the issue of whether it is admissible, is during trial, at a trial within a trial and not at this point. - 15


any injuries, abnormalities, medical conditions or scars thereby creating suspicion as to whether the Respondents are concealing any information which could enable the Applicant obtain justice; that the Applicant is a muslim woman and due to the nature of how they dress, it is hard for one to notice wounds or scars on their bodies;

- 5 that when the Applicant first appeared in court, she was not in good condition to narrate what happened to her and neither was she aware of her rights at the time; and that the Applicant was subjected to the worst kind of inhuman treatment as she states in her Application and there is evidence to show that her body suffered physical trauma and psychological trauma. - 10

Counsel for the Applicant while relying on the case of *Communication 339/2007: Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) versus Republic of Uganda* submitted that when there is a presumption that the person was subjected to torture or ill-treatment, the burden of 15 proof shifts to the Respondent to convince the Court that the allegations of torture raised by the Complainants are unfounded; and that the Respondent only denies

- torturing the Applicant but has not produced any evidence to rebut these allegations and neither did the State take any initiative to investigate the Applicant's allegations independently. - 20 Counsel also contends that the Applicant was produced in Court after being detained for 34 days in violation of Article 23 (4) (b) of the Constitution and that the respondent should be found in violation of the Applicant's rights and the Applicant should be granted the reliefs sought for.

## 25 **Court's determination**

Having considered the evidence on record and the submissions by both Counsel for the Applicant and the Respondent, I deduce that the Applicant's complaint on violation of her human rights is in two forms, that is: illegal detention; and torture or subjection to cruel, inhuman or degrading treatment.

# **ILLEGAL DETENTION**

- 5 The Applicant in her Affidavit in Support to her Application under paragraph 3 states that she was arrested on 9th February 2023 from Mityana and detained at Criminal Intelligence Headquarters at Kololo until she was produced to Court on 13th March 2023. Counsel for the Applicant in her submissions equally states that the Applicant elaborated that she was detained in Uganda People's Defence Forces Criminal - 10 Intelligence premises unlawfully until produced in Court.


On the other hand, the Respondent in the various Affidavits sworn by the different officers (mentioned above) refutes the said claim and attaches copies of the Lock up books of the different detention facilities where the Applicant was held from the time

15 of her arrest until when she was produced in Court. Counsel for the Respondent in her submissions further contends that all the detention facilities where the Applicant was taken are gazette places for holding and detaining suspects of crime.

Counsel for the Applicant in rejoinder submits that the Applicant was only produced 20 in Court after 34 days in detention which is in violation of Article 23 (4) (b) of the Constitution.

Article 23 (2) of the Constitution of the Republic of Uganda provides that: *"A person arrested, restricted or detained shall be kept in a place authorised by law."*

Article 23 (4) of the Constitution further provides that, *"A person arrested or detained—* - *(a) for the purpose of bringing him or her before a Court in execution of an order of a court;* - *(b) or upon reasonable suspicion of his or her having committed or being about to commit a criminal 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*

5 *than forty-eight hours from the time of his or her arrest."*


From the evidence on Court's record specifically Annexure A which has a stamp of the Directorate of Crime Intelligence dated 4th October 2024 shows that the Applicant was brought to that detention facility on 10th February 2023 and taken to Court on 13 10 th March 2023. Nothing is shown in Annexure A as what happens to the Applicant between 10th February 2023 to 13th March 2023 when the Applicant is taken to Court.

However, Annexure C which is a Detention Order dated 15th February 2023 15 indicates that No. 70273 D/CPL Kusemererwa Charity was requested to detain some suspects of whom the Applicant was among. Also according to Annexure D which is Lock up Police Book 33 opened on 28th January 2023 of Kireka Detention Facility, it indicated therein that the Applicant was received at Kireka Detention Facility on 15th February 2023. More so, No. 70273 D/CPL Kusemererwa Charity in her 20 Affidavit in Reply under paragraph 10 states that the Applicant was taken to SID Kireka Detention Facilty on 15th February 2023 and under paragraph 11, she avers

- that the Applicant was produced in Court on 13th March 2023 through crime Intelligence. - 25 In light of the above, it is clear that the Applicant was detained in two facilities that is, in the detention facility at Crimes Intelligence and at Kireka Detention facility between the dates of 10th February 2023 and 13th March 2023 when she was

arraigned in Court. It is my finding that Crimes Intelligence and Kireka Detention Facility are gazetted holding facilities for suspects of crime for purposes of investigation or while investigations are still on going. As such, the Applicant was legal detained in those two facilities.


However, without prejudice to the foregoing, I find that the act of illegality or illegal detention occurred when the Applicant was detained in the above facilities simultaneously for more than a month. No explanation has been advanced by the officers from Crimes intelligence or Kireka Detention Facility as to why the 10 Applicant was not produced in Court within 48 hours as per the provisions of the law. According to Article 23 (4) the Constitution (*supra*), the Applicant ought to have been produced in Court within 48 hours from the time of her arrest if she was not to be released from the said facilities earlier than that.

15 In the premises and in agreement with Counsel for the Applicant, I find that the Applicant's right to be produced in Court as soon as possible in any case not later than 48 hours was violated. This limb of this issue therefore, partly succeeds.

## **TORTURE OR SUBJECTION TO CRUEL, INHUMAN AND DEGRADING** 20 **TREATMENT**

The Applicant in her Affidavit in Support of the Application mentions the different ways in which she was tortured to wit: being beaten with a solder wire, and batons until she passed out and also sustained physical injuries and/or fractures on her left leg, right hand, rib cage, in her brain, on the wrists of her hands because of the hand 25 cuffs, loss of her tooth; undressing her and being forced to have sexual intercourse with an unknown person; being asked to roll in blood; being blind folded; showing her videos of massacres; forcing her to drink unknown substance that caused her

stomach ache; taking away her money worth UGX 630,000 (Uganda Shillings Six Hundred Thirty Thousand); forcing her to confess to charges that were selfincriminating; and psychological torture and trauma. Counsel for the Applicant too regurgitates the same torturous acts in her submissions.


In rejoinder, Counsel for the Applicant maintained that the Applicant was tortured at arrest and during detention before being produced before Court; that there is *prima facie* evidence of physical torture according to Police Form 24 where the medical 20 doctor stated that the Applicant suffered hematoma.

Chapter Four of the 1995 Constitution of the Republic of Uganda (as amended) provides for the protection and promotion of fundamental and other human rights and freedoms. In particular, Article 20 provides that:

25 *(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.*

- *(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.* - 5 Article 24 of the 1995 Constitution of the Republic of Uganda (as amended) provides for respect for human dignity and protection from inhuman treatment. It stipulates that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. - 10 Article 44 of the same stipulates freedom from torture and cruel, inhuman or degrading treatment or punishment as one of the non-derogable rights.

Section 1 of the PPTA defines torture. It provides that:

- *(1) In this Act, torture means any act or omission, by which severe pain or suffering whether* 15 *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* 20 *suspected of having committed or of planning to commit;* - *(c) or intimidating or coercing the person or any other person to do, or to refrain from doing, any act.* - *(2) For purposes of this Act, "severe pain or suffering" means the prolonged harm caused by or resulting from—* - 25 *(a) the intentional infliction or threatened infliction of physical pain or suffering;* - *(b) 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;* - *(c) the threat of imminent death;*

- *(d) or 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.* - 5 *(3) Without limiting the effect of subsection (1), the acts constituting torture shall include the acts set out in the Second Schedule.* - *(4) The definition of torture set out in subsection (1) does not include pain or suffering arising from, inherent in or incidental to a lawful sanction.*

10 The Second Schedule of the PPTA categories torture into three categories that is: physical torture, mental or psychological torture and pharmacological torture and lists the following as acts constituting torture:

- *1. Physical torture including—* - *(a) systematic beating, head banging, punching, kicking, striking with truncheons, rifle butts,*

15 *jumping on the stomach;*

- *(b) food deprivation or forcible feeding with spoiled food, animal or human excreta;* - *(c) electric shocks;* - *(d) cigarette burning, burning by electrically heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices;* - 20 *(e) the submersion of the victim's head in water or water polluted with excrement, urine, vomit or blood;* - *(f) being tied or forced to assume a fixed and stressful body position;* - *(g) rape and sexual abuse, including the insertion of foreign bodies into the sexual organs or rectum or electrical torture of the genitals;* - 25 *(h) mutilation, such as amputation of the essential parts of the body such as the genitalia, ears, tongue;* - *(i) dental torture or the forced extraction of the teeth;* - *(j) harmful exposure to the elements such as sunlight and extreme cold; or* - *(k) the use of plastic bags and other materials placed over the victim's head with the intention* 30 *to asphyxiate.*

- *2. Mental or psychological torture including—* - *(a) blindfolding;* - *(b) threatening the victim or his or her family with bodily harm, execution or other wrongful acts;* - 5 *(c) confining a victim incommunicado, in a secret detention place or other form of detention;* - *(d) confining the victim in a solitary cell or in a cell put up in a public place;* - *(e) confining the victim in a solitary cell against his or her will or without prejudice to his or her security;* - *(f) prolonged interrogation of the victim so as to deny him or her normal length of sleep or* - 10 *rest;* - *(g) maltreating a member of the victim's family;* - *(h) witnessing the torture sessions by the victim's family or relatives;* - *(i) denial of sleep or rest;* - *(j) shame infliction such as stripping the victim naked, parading the victim in a public place,* 15 *shaving the head of the victim, or putting a mark on the body of the victim against his or her will;* - *3. Pharmacological torture including— (a) administration of drugs to induce confession or reduce mental competence;* - 20 *(b) the use of drugs to induce extreme pain or certain symptoms of diseases; and* - *(c) other forms of deliberate and aggravated cruel, inhuman or degrading pharmacological treatment or punishment.*

Thus, from the reading of Section 2 (1) of the PPTA, the ingredients of torture 25 include the following:

- 1. An act or omission which causes severe pain or suffering whether physical or mental; - 2. The pain or suffering is intentional;


- 3. The pain or suffering is inflicted or instigated or done with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity; - 4. The pain or suffering is inflicted or instigated for purposes of obtaining 5 information or a confession, punishment, intimidation or coercion; and - 5. The pain or suffering is inflicted on the Complainant/ Applicant.

Considering the Application and the submissions of both parties in their entirety, I find that whereas the Applicant alleges several ways in which she was tortured, she 10 does not back her allegations with any evidence to support them.

The Applicant states that she was beaten with a solder wire, and batons until she passed out and also sustained physical injuries and/or fractures on her left leg, right hand, rib cage, in her brain, on the wrists of her hands because of the hand cuffs, loss 15 of her tooth; undressing her and being forced to have sexual intercourse with an unknown person; being asked to roll in blood; being blind folded; showing her videos of massacres; forcing her to drink unknown substance that caused her stomach ache but she does not provide any evidence to prove those allegations. The Applicant should have at least provided this Court with a medical report to that effect

- 20 but nothing of the sort was done. Counsel for the Applicant in her submissions in rejoinder states that there is medical evidence to show that the Applicant suffered physical and psychological trauma but she did not attach the same on her Application. - 25 On the other hand, there is a Medical Examination Report attached to the Affidavits in Reply of the Respondent by Dr. Bwambale Phenehas of Police Health Services dated 13th February 2023 which indicates on the first page (PART A) that the

Applicant had no injuries whatsoever at the time the medical examination was done. However, the second page (PART B) of the same medical report indicates that the Applicant has a hematoma on the occipital aspect measuring (2x2) cm but the medical officer does not describe what kind of injury that was on the Applicant.

Counsel for the Applicant in her submissions in rejoinder states that the Applicant suffered a hematoma according to Police Form 24 which is a pool of mostly clotted blood that forms in an organ, tissue or body space and swelling on the left leg which is prima facie evidence that she was tortured. Unfortunately, Police Form 24 that is 10 being relied upon in this instance does not describe the type of injury or the possible cause of the said injury. It would be very dangerous for Court to assume that, that kind of injury occurred because the Applicant was subjected to torture. On the contrary, in the Affidavits of the Respondent, it is explained how the Applicant sustained the said injury on her leg. Perhaps had she not resisted arrest, she would 15 not have sustained the hematoma and swelling on her left leg.

Whereas I find that the Medical Examination Report was poorly done because of the contradictions found in PART A and PART B regarding the injuries on the Applicant, I do not doubt that the said injuries if any were so minor that the Medical 20 Officer did not find it necessary to report about it in detail. I am also compelled to believe that the injuries that the Applicant alleges to have sustained were as a result of the scuffle the Applicant had with the arresting officers during her arrest as explained in all the Respondent's Affidavits in Reply.

25 Counsel for the Applicant contends that excessive force was used to arrest the Applicant because according to her the Applicant was one against a team of three arresting officers. I find that the Respondent in their Affidavits in Reply state that the Applicant's husband (Suleiman Segawa Bisaaso) was shot and he died on spot because he attempted to disarm one of the arresting officers. This is an indication that the scuffle that happened was not just a mere scuffle as the Applicant and or her Counsel want this Court to believe. It is therefore possible that too much resistance

5 was put up by the Applicant which is the reason that she got injured.

The Applicant also alleges to have suffered from psychological torture and trauma but there is no evidence to prove the same. Instead the Medical Examination Report attached to the Respondent's Affidavits in Reply indicate that the Applicant's mental

10 state was normal as she was fully oriented in place, person and time.

The Burden of Proof was upon the Applicant to prove her allegations. Section 101 of the Evidence Act, Cap. 8 provides that:

"*Whoever desires any Court to give judgment as to any legal right or liability dependent on the*

15 *existence of facts which he or she asserts must prove that those facts exist."* Section 103 thereof also provides that:

"*The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."*

Section 106 further provides that:

*"In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person.***"**

25 Counsel for the Applicant while citing the case of *Communication 339/2007: Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) versus Republic of Uganda*, contended that the Burden of Proof shifts to the Respondent to convince the Court that the allegations of torture raised

by the Applicant are unfounded and that the State is supposed to take the initiative to investigate the Applicant's allegations independently as required.

In light of the above, I find that it was the Burden of Proof was on the Applicant to 5 substantiate her allegations of torture, cruel, inhuman and degrading treatment. However, there isn't any evidence to back up her allegations. As such, I am compelled to agree with Counsel for the Respondent that this Application is an afterthought by the Applicant intended to escape prosecution for the offences the Applicant is indicted for.

I also wish to observe that my belief that this Application is an afterthought is furthher buttressed by the delayed filing of this Application. It is my considered view that it has been brought rather late and it is intended to further delay the pre-trial of *HCT-00-ICD-PT-0001 of 2023: Uganda versus Katende Moses and 8 Others* from 15 which this Application arises. The pre-trial of this matter was moving on well and at a good speed until the time of reading of the charges to the Accused persons and that is when all the Accused persons on that file started coming up with different complaints some as petty as not understanding the Luganda language and yet they had been proceeding using the same language from the inception of this matter. It 20 suffices to note that the reading of the charges were stopped half way to deal with a health complaint that was raised by one of the accused person and it was then that this Application was also filed in the Court.

In addition to the above, I have been observing the Applicant and her fellow Accused 25 persons in Court since mid-last year or thereabout and I have never noticed anything strange about them save for one who has an issue with one of his legs (Katende Moses) but is on treatment as per the Doctor's Report from the prison facility where

he is detained (Luzira Upper Prison). All the Accused persons look healthy and well taken care of contrary to what one would expect of someone in prison. None of them even look depressed to say but the least. In agreement with the submissions of Counsel for the Respondent, the allegations made by the Applicant are too grave or 5 so intense to go unnoticed by anybody.

- Before the Applicant and her co-accused were committed to the High Court, they appeared before a Magistrate in the lower Court. I believe that at the time they appeared before the lower Court, if there were any wounds, bruises, etc. as a result of torture, the said Magistrate would have noticed them and made a comment in his 10 or her record about them or the Applicant and her co-accused would have notified - the said Magistrate of the said torture but nothing of the sort was done or happened.

Counsel for the Applicant in her submissions in rejoinders contends that the Applicant is a Muslim and that according to her dress code, it is hard for one to 15 notice wounds and scars on their bodies and that the upon the Applicant's first appearance in Court, she was not in good condition to narrate what happened to her and neither was she aware of her rights.

I am mindful of the fact that the Applicant is a Muslim and majority part of her body 20 is covered but like I said earlier, the injuries the Applicant sustained cannot go unnoticed for example, the loss of her tooth, the removal of her toe nails, the fractured arm and leg, among others. From her Affidavit in Support of her Application, the Applicant narrates her torture ordeals that went on until the morning of 12th March 2023, just a day before she was brought to Court. I do not believe that 25 the Applicant healed overnight and was able to stand appear in Court the following day which was 13th March 2023, which is the first time they were presented in Court. thinking capacity because one wonders how she is even alive to tell this story if she actually underwent all the torture that she alleges. If the Applicant's story was true, her condition would never have gone unnoticed.

- 5 The Applicant further states that she was subjected to cruel, inhumane, degrading and torturous treatment in the process of which she was forced and intimidated into signing a document which has been disclosed as a charge and caution statement incriminating herself. Counsel for the Applicant while relying on Sections 14 (1) and 15 of the PPTA contended that information obtained from a person by means of 10 torture is inadmissible and a person who uses information obtained by means of torture commits an offence. However, Counsel for the Respondent submitted that the issue of whether such information is admissible is done at trial stage and not at this point. Counsel for the Applicant made no submissions in rejoinder on this issue. - 15 I would like to note in agreement with Counsel for the Respondent's submission that this matter is still at pre-trial stage and at this stage, there is no admissibility of evidence. What is done at the pre-trial stage is to determine whether on the face of it, the prosecution has sufficient evidence that is enough to forward an Accused person for trial. The pre-trial stage at the International Crimes Division does not go 20 into the ingredients of the case per se and neither does it look into the nitty gritty of the evidence provided to it. All that is done at the trial stage of a case after the charges are confirmed against the Accused person. I find that Counsel for the Applicant's submission concerning the confession and admissibility of the same premature. She can raise that argument at trial if the charges are ever confirmed against the 25 Applicant.

Consequently, for the reasons above, this limb of this issue wholly fails. The Applicant failed or did not prove to the satisfaction of this Court the torture and/or cruel, inhuman and degrading treatment that she was subjected to upon her arrest and during her detention.

## **Issue 2:** *What remedies are available to the parties?*

Counsel for the Applicant while citing Section 9, 11 (2), 15 (3) (c) of the Human Rights Enforcement Act; the cases of *Kizza Besigye* and *Agaba* already cited above, submitted that: Court make a declaration that the conduct and actions of the 10 respondent violated, contravened, infringed upon and/or threatened the Applicant's non-derogable rights and freedoms from torture, cruel, inhuman and degrading treatment guaranteed under Article 24 and 44 (a) of the Constitution; Court Orders the nullification of the charge, acquits and/or unconditionally releases the Applicants; Court awards costs to the Applicant; Court awards general and 15 exemplary damages to the Applicant with interest on the said damages and costs. That Court should award the Applicant a total of UGX 150,000,000 (Uganda Shillings One Hundred Fifty Million) as combined general, exemplary and aggravated damages with an interest of 15% per annum on both damages and costs from the date of the ruling till payment in full.

On the other hand, Counsel for the Applicant prayed that this honourable Court dismisses the Application because there is insufficient evidence to prove that the Applicant's allegations.

## 25 **Court's determination**

As already stated above, this Application only succeeds to the extent that the Applicant was detained for more than 48 hours without being arraigned in Court and no explanation was offered. I also found that there was insufficient evidence provided by the Applicant to prove her allegations of torture, cruel, inhuman and degrading treatment. As such, the Application failed to that extent and the remedies prayed for by Counsel for the Applicant cannot be awarded for the said reason.

However, Section 9 of the Human Rights Enforcement Act, Cap. 12 provides for other Orders or remedies that may be made by Court in human rights cases. Subsection 2 (c) of the same provides for **satisfaction** as one of the Orders that may be made by Court. Paragraph (v) of the same provides that satisfaction may include 10 criminal and other judicial and administrative sanctions against persons for the violations. [Emphasis Mine]

In light of the above provision, this Court uses its discretion to caution the perpetrators at Crimes Intelligence and Kireka Detention Facility to desist from 15 holding in their custody anyone suspected to have committed a crime for more than 48 hours which is against the constitutional rights of any individual in the Republic of Uganda. Anyone being held in custody should be arraigned before a competent Court of lawwithin 48 hours and if there is any reason for such a person to be held further in the said facility, the reasons should be clearly advanced to Court in an 20 Application, oral or formal, such that Court can pronounce itself on the same. That way, such detention ceases to be illegal when there is a Court pronouncement that follows it as compared to when it is not there because at such a point, there is no

one's intention are.


In light of the above, therefore, this Application partially succeeds only to the extent that the Applicant was detained for more than 48 hours before being arraigned in a

justification for detaining a suspect for more than 48 hours irrespective of how pure


Court of law. The perpetrators that detained the Applicant for more than 48 hours are hereby cautioned to desist from doing the same. No order as to costs have been made.

**Dated at Kampala this 5th day of November 2024.**


Alice Komuhangi Khaukha

## 10 **JUDGE**

5/11/2024