Ogengiu Agenonga Vicent v Attorney General (Complaint UHRC 41 of 2014) [2019] UGHRC 5 (28 October 2019)


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT HOIMA COMPLAINT NO UHRC/HMA/41/2014

OGENGIU AGENONGA VICENT::::::::::::::::::::::::::OMPLAINANT

$-$ AND $-$

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

### (BEFORE HON. COMMISSIONER MEDDIE B. MULUMBA)

#### DECISION

Ogengiu Agenonga Vicent (the Complainant) a resident of Karungi Sub County, Kiryandongo Parish, Kichomugingo $\mathbf{I}$ Village, Kiryandongo District alleges that on $6/07/2014$ he was arrested on allegations of murder by Policemen attached to Kiryandongo Police Station. That upon arrest, he was taken to Kiryandongo Police Station where he was detained until $23/07/2014$ when he was taken to Court.

$\mathbf{1}$

This matter came up for $1^{\mbox{\tiny st}}$ time hearing on $27/09/2016$ before The Respondent $was$ not Basaliza. Stephen Commissioner represented. Leave was granted to proceed ex-parte against the framed $\overline{f}$ or issues were following Respondent. The determination:-

- I. Whether the Complainant's right to personal liberty was violated? - II. Whether the Respondent is vicariously liable? - the available to remedies III. Whether there $\quad\text{are}\quad$ any Complainant?

$19/06/2018$ , for further hearing on $cross$ $came$ matter The examination was carried out on the Complainant. This was the close of the Complainant's case. The matter was then opened for The matter was then reallocated to me for further defence. When the matte came up defence case, Ebila Hillary hearing. Nathan (SA) prayed to file written submissions in defence which have not been filed todate.

Evidence in this matter was heard by Commissioner Stephen Basaliza and it is therefore from his record of proceedings that I arrive at this decision. I will resolve the Issues in the order they were raised.

$\overline{2}$

In regards to Issue I, the Complainant's testimony is that at around 1:00 pm on $3/07/2014$ while he was at Corner Trading Centre he was arrested by six uniformed policemen. Three of the policemen were armed with guns. He was then put into a vehicle and driven to Cwabugingo Parish located in Kiryandongo District where he was taken to a scene of crime. He was then taken to Station where detained until he $was$ Police Kirvandongo $17/07/2014$ when he was taken to Court.

In cross examination he stated that he was arrested by four policemen.

A person 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 (Article 23(4) (b) of the Constitution of the Republic of Uganda; 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 Complainant bears the burden to prove that his right to personal liberty was violated by the Respondent's agents on a balance of probabilities (Section 101 - 103 of the Evidence

$\overline{3}$

Act; Allen Nsubuga Ntananga Vs Kimbugwe Jemba Jackson & 4 Others HCCS 670 of 2006). To corroborate his testimony of detention at Kiryandongo Police Station he tendered in evidence a certified copy of the Police lock-up Register from Kiryandongo Police Station which was marked Exhibit I. From Exh I, the Complainant was in detention for a period of 14 days from $3/07/2014$ until $17/07/2014$ when he was taken to Court. There is no evidence from the Respondent which challenges this fact; apart from a general denial.

From Exhibit I the Complainant was in detention for a period of 14 days; and when the 2 lawful days permissible under Article 23 (4) of the Constitution of the Republic of Uganda 1995 are deducted we are left with 12 unlawful days of detention. The Complainant which was hours beyond 48 detention of the Constitutional provisions infringed the thus requirement, enshrined in articles 20(2), 23(3) and (4) [see Omar Awadh Omar and 10 others vs Attorney General Consolidation Constitutional Petition No.s 055 and 56 of 2011; Mbusa Wilson and Attorney General UHRC/F/151/2003.

### I therefore hold Issue I in the affirmative.

In regards to Issue II, the law on vicarious liability as enunciated in Muwonge vs Attorney General (167) EA 17 has been further laid out in various decided cases (see also Oketha Dafala Valente vs Attorney General HCCS 69 of 2004). In the

the testimony of the Complainant $_{\rm is}$ complaint, instant uncontroverted to the effect that he was arrested and detained at Kiryandongo Police Station. To corroborate his testimony he called one witnesses CW I and tendered in evidence a certified copy of the Police lock-up Register from Kiryandongo Police Station and it was marked Exhibit I. I found not found any evidence to suggest that the policemen involved were on a frolic of their own.

On basis of the evidence availed to the Tribunal, I find that the complainant has proved on the balance of probabilities that the policemen who arrested and detained him at Kiryandongo Police Station did so in the scope of their duty and course of their employment for which the Attorney General is vicariously liable.

## The second issue too is therefore answered in the affirmative.

Having held Issues I and II in the affirmative, I find that the include $\quad\text{which}\quad$ $may$ entitled to ${\tt remedy}$ $\overline{a}$ Complainant $\scriptscriptstyle\rm i s$ compensation (see Article 53 $(2)$ (b) and (c) of the Constitution of the Republic of Uganda 1995). In determination of the quantum of damages he is entitled to, I will take into account the period of illegal detention. In the instant case the Complainant was in illegal detention for 12 days before he was taken to Court. I deem a figure of UGX 4,000,000/= (Uganda Shillings four million only) as general damages for the violation of his right

$\mathsf{S}$

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 Complainant a sum of UGX 4,000,000/= (Uganda Shillings four million only) as general damages for the violation of his right to personal liberty as protected under Article 23 $(4)$ $(b)$ of the Constitution. - 3. The total sum of UGX 4,000,000/= (Uganda shillings four shall carry interest at $10\%$ per annum million only) calculated from 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.

Dated at HOIMA this $\frac{1}{2019}$ .

m Linh

MEDDIE B. MULUMBA PRESIDING COMMISSIONER