Ongom Fred v Attorney General (Complaint UHRC 38 of 2014) [2019] UGHRC 7 (28 October 2019)

Full Case Text

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# THE REPUBLIC OF UGANDA THE LIGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT HOIMA COMPLAINT NO: UHRC/HMA/38/2014

ONGOM FRED:::::::::::::::::::::::::::::::::::: $-AND-$ ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

### DECISION

*[Before: Commissioner Meddie B. Mulumba]*

Ongon Fred (the Complainant), 24 years, a resident of Kabarobota Village, Kyakamese Parish, Pakanyi Sub County, Masindi District alleges that at around 5:00 am he was arrested by the Councilor of Kiyakamesa Parish who was in the company of two members of his defence team. That upon arrest he was taken to Pakanyi Police Post where he was detained for three weeks before being produced in Courts of Law.

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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? - remedies available to the III. Whether there any are Complainant?

Evidence in this matter was heard by Commissioner Stephen Basaliza. It was therefore allocated to me at the conclusion for Stephen Basaliza's decision. $It$ is $from$ Commissioner $\mathbf{a}$ proceedings that I arrive at this decision.

I will handle the Issues raised concurrently.

In regards to Issue I, the Complainant's testimony is that at $21st$ October 2013 he was arrested on around $5:00$ $am$ $on$ allegations of defilement by three people who were in the company of the Councilor of Kyakamesa Village. Upon arrest he was taken to a certain house at Kibamba where he was detained until the next day when he was taken to Pakanyi Police Post. He was detained at Pakanyi Police Post until $1^{st}$ November 2013 when transferred to Masindi Police Station where he was he was

further detained until $5th$ November 2013 when he produced before Court.

Upon cross examination he stated that at the time of arrest he was 20 years. He was detained for 11 days at Pakanyi Police Post and three days at Masindi Police Station.

The Complainant tendered in the certified copy of the Lock up register from Pakanyi Police Post Exhibit 1 (a) which indicates that he was detained on $23^{rd}$ October 2013 on allegations of defilement vide Serial No $95/13$ until $31^{st}$ October 2013 when he was transferred to Masindi Police Station. He also tendered in evidence Exhibit 1 (b) which is a certified copy of the Lock Up from Masindi Police Station indicates that he was detained at the Station from $1^{st}$ November 2013 vide Serial No 2555/13 until $5th$ November 2013 when he was taken to Court.

The Complainant tendered in letter authored by SP Ekudot Moses DPC Masindi dated 7th April 2015 - Exhibit II. Exhibit II indicates that he was charged for Simple Defilement vide Pakanyi CRR 135/13. On 1st November 2013 he was transferred to Masindi Police Station on the same charge. He was taken to Court on $5th$ November 2013 vide MSD CRB 2395/13 where he was convicted to three years imprisonment. The Complainant was detained to Page 3 of 8 prevent him from suffering physical injury as per Section 24 (b) of the Police Act.

The right to personal liberty is guaranteed under Article $23(4)$ (b) of the Constitution of the Republic of Uganda 1995, $\quad\text{``the}\quad$ 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 also 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].

From the evidence on record, the Complainant was in Police custody from $23^{rd}$ October 2013 until $5^{th}$ November 2013 which is a period of 13 days when the 2 lawful days permissible under Article 23 (4) of the Constitution of the Republic of Uganda 1995 are deducted 11 unlawful days of detention remain.

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 Page 4 of 8

liberty (Katembo Jean Pierre and Attorney General nersonal UHRC/MSk/13/2012; Ojok Alex and Attorney General UHRC/G/3/2005; Fred Biryomumaisho and Attorney General UHRC/253/2003). In the instant case the Complainant was in unlawful detention for 11 days therefore his right to personal liberty as protected under Article 23 $(4)$ (b) of the Constitution was infringed upon by the Respondent's agents for 11 days.

In his response SP Ekudot Moses justified the over detention of the Complainant was justified. He stated that the complainant was detained in order to prevent him from suffering physical injury. He cited Section 24 (1) (b) of the Police Act Cap 303. I wish to note that Section 24 $(2)$ of the Police Act Cap 303 states that once the injury of obstruction has been sufficiently removed, on the execution of a bond with or without surety the person detained shall be released. There was no evidence adduced to show that the threat to physical injury was present for the extra 11 days he was in detention.

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

After considering the Complainant's evidence and having held Issue 1 in the affirmative, I have no doubt that the Complainant

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was arrested and detained by Respondent's agents in the course of their employment. The arrest and detention is not denied. $\mathbf{I}$ have no hesitation in concluding that all this was done by the agents of the Respondent in course of their employment. $\mathbf{I}$ therefore find that the Attorney General is vicariously liable for the acts and omissions of its servants (see Omonyi Rogers and Attorney General & Uganda Revenue Authority HCCS 27 of $2002$ ).

## I therefore hold Issue II in the affirmative.

Having held Issues I and II in the affirmative, I find that the Complainant is entitled to compensation (see UDHR Article 8; Article 53 (2) (b) and (c) of the Constitution of the Republic General *and Attorney* $of$ *1995:* 1 Okuda Clement Uganda UHRC/MRT/15/2004). Accordingly, the only question left is on determining what quantum of damages he is entitled to. In the instant case the Complainant was in illegal detention for $11$ days before he was taken to Court. I deem a figure of UGX 3,000,000/= (Uganda Shillings three million only) as general damages for the violation of his 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 Complainant a sum of UGX 3,000,000/= (Uganda Shillings three 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 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.

#### Per Curiam

As per his testimony, the Complainant stated upon his arrest at 5:00 am from his home by the Local Councilor, he was taken to a certain house at Kibamba where he was detained until the next

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morning when he was taken to Pakanyi Police Post. The Local Councilor and his team should without unnecessary delay have handed the Complainant over to a Police officer or taken him to the nearest Police Station (Sections 15 and 16 of the Criminal Procedure Code Act Cap 16). His detention in a private house which is a not an authorized place of detention was a violation of Article 23 (2) of the Constitution (see also Behangana Domaro *Attorney General* Birungi *Behangana* $V\!S$ $\mathscr{E}$ *Mangadalen* Constitutional Petition 53 of 2010; Matovu Kabuye and Attorney General UHRC/58/2002).

$od 28$ Dated at HOIMA this …… 2019. $\cdots$ day of

MEDDIE B. MULUMBA PRESIDING COMMISSIONER

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