Okethcwinyu Fred v Attorney General (Complaint UHRC 42 of 2014) [2019] UGHRC 6 (28 October 2019)


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT HOIMA COMPLAINT NO: UHRC/HMA/42/2014

OKETHCWINYU FRED:::::::::::::::::::::::::::::::::::: $-AND-$ ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## DECISION

*[Before: Commissioner Meddie B. Mulumba]*

Okethcwinyu Fred (the Complainant) a resident of Karungu I Village, Kicobungingo Parish, Kiryandongo Sub County in Kiryandongo District alleges that on $5<sup>th</sup>$ July 2014 while he was at Bweyale Town Council, he was arrested by three armed Policemen on allegations of murder. That he was thereafter taken to Bweyale Police Station where he was briefly detained for one night and on the following day he was transferred to Kiryandongo Police Station where he was further detained.

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for $1^{st}$ time hearing before This matter came $\mathbf{u}\mathbf{p}$ Commissioner Stephen Basaliza on 29/09/2016. The following issues were framed for determination:-

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

Examination in chief was carried on the Complainant. The matter was thereafter adjourned to enable the parties explore amicable settlement. The matter came up again on 19/06/2018 for update on amicable settlement. The matter was then reallocated to me for further hearing. When the further hearing $10/06/2019$ . $\quad\text{for}\quad$ $\overline{on}$ matter came up Commission Counsel Nambi Jashimin Kasujja informed the Tribunal that efforts at amicable settlement had failed. Cross examination was then carried out the Complainant. the close of the Complainant's case. The This $was$ Respondent did not call defence witnesses State $\quad\text{bv}\quad$ Attorney - Mugisa Lydia filed written submissions in defence.

After carefully considering the evidence on record and submissions by learned State Attorney, I will go ahead and deal with each issue separately.

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As earlier noted, the Respondent did not call defence witnesses. The Complainant still has the burden to prove that his right to personal liberty was violated by the Respondent's agents on a balance of probabilities.

In regards to Issue I, the Complainant's testimony is that at around 8:00 pm on $4^{th}$ July 2014 while he was in Bweyale Trading Centre he was arrested by three uniformed policemen. He was then taken to Bweyale Police Station where he was briefly detained for one night. At around 9:00 am on the following morning, he was transferred to Kiryandongo Police Station until $23^{rd}$ July 2014 when he was produced before Kiryandongo Court and thereafter remanded to Kigumbe Prison. He tendered in Exhibit I in support of his evidence.

On cross examination he stated that he was arrested on $4/07/2014$ at 8:00 pm. He was detained for one night at Bweyale Police Station and then transferred to Kiryandongo Police Station.

a certified copy of the Lock-up Exhibit $\mathsf{I}$ which is Register from Kiryandongo Police Station indicates that he was detained on $5/07/2014$ on allegations of murder vide No $1236/14$ CRB 870/14. On the $15/07/2014$ , the Serial charge was later changed to threatening violence. On the

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$18/07/2014$ the charge was again changed to murder. $0n$ $23/07/2014$ he was taken to Court.

In written submissions, learned State Attorney pointed out that the right to personal liberty is not absolute and can be deprived in the instances envisaged under Article 23 (1) $(a - h)$ . Police using its power under Section 23 of the Complainant on rightful the Police Act detained suspicion of murder and to help in police investigations. The arrest and detained was justified.

The right to personal liberty is guaranteed under Article 23 of the Constitution of the Republic of Uganda 1995, "the Constitution". As rightly pointed out by learned State Attorney in submissions this right is not absolute and can be deprived under the instances under Article 23 As per Article $23$ (1) (c) of $-h$ ). $(1) \quad (a)$ the Constitution, the complainant's arrest was lawful. From Exhibit I, the Complainant was in Police custody $5/07/2014$ until $23/07/2014$ which is a period of 18 days. As per Article 23 $(4)$ (b) of the Constitution 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 legal same

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requirement is specifically and explicitly stated $in$ Section $25(1)$ of the Police Act Cap 303.

The Complainant was in Police custody $5/07/2014$ until $23/07/2014$ which is a period of 18 days which was beyond the 2 lawful days permissible under Article $23$ (4) (b) of the Constitution. He was therefore in illegal detention See: Fred Ssemanda and Attorney General $16$ days. $\overline{f}$ or UHRC/278/2004. His 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.

The complainant was arrested on allegations of murder by three uniformed policemen attached to Bweyale Police Station who are employees/servants of the Respondent. He then detained at Bweyale and Kiryandongo Police $was$ Stations in excess of 16 days. This was done in the course their employment. I find that the Respondent $is$ $\mathsf{of}$ vicariously liable for their actions. See: Section 10 of the Government Proceedings Act Cap 77; Omonyi Rogers and Attorney General & Uganda Revenue Authority HCCS 27 of 2002; Mugwanya Patrick Vs Attorney General HCCS 154 of 2009.

I therefore hold Issue II in the affirmative.

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In written submission learned State Attorney prayed for the Tribunal to exercise its discretion judiciously n awarding a remedy. Having held Issues I and II in the affirmative, I find that the Complainant is entitled a remedy which can include compensation. See : Article 53 $(2)$ (b) and (c) of the Constitution of the Republic of Uganda 1995; James Okello & Cissy Okello and Attorney General UHRC/49/2003; Nsereko and Attorney General UHRC /112/1999: Murumba Thedius and Attorney General UHRC/ $258/2003$ .

Accordingly, the only question left is on determining what 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 16 days before he was taken to Court. I deem a figure of UGX 3, 200, 000/= (Uganda 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 of the Republic of Uganda 1995.

## **ORDERS**

1. The complaint is allowed.

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- 2. The Respondent is ordered to pay to the Complainant -Okethcwinyu Fred a sum of UGX $3,200,000/=$ (Uganda 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 of the Republic of Uganda 1995. - 3. The said sum 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.

$\mathcal{L}_{\mathcal{L}}$

$\mathcal{O}$ Ch $\mathcal{F}_{\mathcal{S}}$ Dated at HOIMA this ……… $\cdots$ day of 2019.

ハピア

MEDDIE B. MULUMBA PRESIDING COMMISSIONER

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