Sembatya Yahaya v Attorney General (Complaint UHRC 142 of 2007) [2017] UGHRC 10 (9 May 2017)

Full Case Text

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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION AT KAMPALA

### COMPLAINT UHRC NO UHRC/142/2007

### SEMBATYA YAHAYA...............................

-AND-

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

# BEFORE HON. COMMISSIONER STEPHEN BASALIZA **DECISION**

The Complainant brought this complaint against the Respondent seeking compensation for violation of his rights to personal liberty and property. He told the tribunal thaton 2nd November, 2006, he was arrested on charges of abetting a theft. That he was detained at Kampala Central Police Station until 13th November, 2006 when he was produced before Buganda Road Court and remanded to LuziraGovernment Prison. He further states that on $3^{rd}$ November, 2006, he was taken to his home for a search and UgShs.100,000= was taken and never returned. The Complainant further states on $27th$ November, 2006 he was released on court bail and that on 02nd August, 2007 the case was dismissed for want of prosecution.

He contended that arrest and detention and the confiscation of the cash amounted to violation of his rights to personal liberty and property and sought to hold the Respondent vicariously liable for the actions.

**ISSUES**

- Whether the Complainant's right to Personal liberty was violated. $(i)$ - Whether the Respondent's agents/servants violated the complainant's $(ii)$ right to own Property. - $(iii)$ Whether the Respondent (Attorney General) is liable for the violations against the complainant's rights - Whether the Complainant is entitled to compensation. $(iv)$

Before I resolve the above issues I wish to state that in this matter, the Respondent was representedby a State Attorney, Counsel Ojambo Bichachi. I wish to also note from the record that the Respondent did not call defense witnesses nor file submissions in defence although he cross examined the Complainant and his witnesses.

The above notwithstanding, the Complainant retained the duty to prove his case against the Respondent to the satisfaction of the tribunal and in accordance with the Evidence Act cap $6$ .

Under S.101 (1) of the Evidence Act Cap $6$ , it is provided that

"Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that the facts exist"

And under S.102 of the Evidence Act

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.'

I now turn to the issues.

#### Whether the Respondent's agents violated the complainant's $(i)$ right to personal liberty.

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda. The right to personal liberty is further protected by various International Human Rights Instruments to which Uganda is signatory.

Article 23(1) of the Constitution of the Republic of Uganda provides circumstances where a person can be lawfully deprived of his or her personal liberty. In particular of bringing the person before a court upon reasonable suspicion that that person has committed or is about to commit a criminal offence.

Violation of a right to personal liberty means the unjustified deprivation of the freedom from movement.

Richard Clayton & Hugh Tomlinson in their book the law of Human Rights volume 1 at page 455 write as follow;

"The tort of false imprisonment is committed by someone who intentionally subjects another to total restraint of movement either by actively causing his confinement or preventing him from exercising his privilege of leaving the place where he is. Any interference with liberty is unlawful unless the person responsible for the imprisonment can show that it is justified."

### The Complainant Sembatya Yahaya CW1 testified as follows;

"On 2nd November, 2006 I was a driver of special hire car. I had parked at Shell Kampala Road Victoria Turban. There came two men and sat in my car. They asked me to take them. When we reached Kampala Central Police Station I was ordered to go in. They told me that there was someone who had stolen money from a Dinka and it is me who had driven him. I was put in cells at Kampala Central Police Station and slept a night"

He added that on 3rd November, 2006 at 6.00 p.m. one of the officers went with him home to search. That they found Shs.100,000= and took it. That he was given a document to show that they took his money. That he came to know the officers as Katende and Mugima in Room and were CID Officers. He further stated that from 3rd November, 2006to 9th November, 2006 he was in detention. That he asked for bond and was told that the Dinka (owner) had not found who

stole his money. That he was left in cells until 13th November, 2006 when he was taken to Buganda Road Court.

During cross examination by Counsel for the Respondent, the Complainant stated that he was in detention for Nine (9) days and the wife visited him after one day in detention. He also stated that he cooperated with the police officers during arrest as they just took him without using any force.

When re-examined by Counsel for the Commission Ms. Olivia Nanseko, the Complainant stated that he was arrested on $2^{nd}$ November 2006 by a police officer who was in civilian clothes.

CW2, Nagadya Zaituni the wife to the Complainant stated that on 3rd November, 2006, Sembatya went to work but that day he never came back and that it had never happened. That the following day at 10.00 a.m, she received a phone call that her husband had been arrested.

She added as follows;

"I kept taking for him food for seven days and when I returned to check on him I found when he had been taken to Luzira Prison. I kept visiting him in Luzira Prison twice a week all the two weeks he was in Luzira Prison, I would take him food in form of fruits and ripe bananas. He was thin and his state was not well. He was brought back to Buganda Road Court and his friends stood him surety. He kept reporting to court for some time."

During cross examination by Counsel for the Respondent she stated that the husband was arrested on 3rd November 2006 and she was called the following day since he hadnot gone back home the previous day. That she went to CPS to check on her husband and took for him food for 4 consecutive days. She also stated that she could not remember when the husband was released. When reexamined by Commission Counsel, the witness insisted that the complainant was arrested on $3rd$ December 2006.

I note that the witness contradicted herself when she stated that the complainant was arrested on 3rd December 2006 contrary to what she stated in examination in chief.

### CW3, Mubarak Hassan Nsereko Muhammad Musa testified as follows;

"It was November, 2006 that time Sembatya was my friend. I used to sell him shoes. I spent two days without seeing him and I was told that he had been arrested and was at Kampala Central Police Station. Then I went to Central Police Station and asked to see him and he was called and I talked to him. I asked him why he was arrested and he told me that one man came and sat in his vehicle and asked him for a lift and he drove him to CPS. I went back and asked who was handling Sembatya's case. I was directed to Rood 42 where I got two officers and asked them about the case of Sembatya and they said it was a complicated case. I kept going there for about four times to secure bond, after 4 days I gave up. I saw him again after sometime".

During cross examination, the witness stated that the Complainant was arrested on a date he could not recall but in November 2008. That he went to the Police Station to check on the complainant four times. When re-examined he stated that the complainant was arrested in November 2008.

The Complainant tendered in a copy of a certified copy of the lockup register of Central Police Station Kampala and marked as Exhibit I (CW Exb. I) to prove detentionat Central Police Station.

I note that the Complainant's testimony and that of the witnesses is corroborative in respect to the fact that the Complainant was arrested and detained at Central Police Station Kampala. I however note that the witnesses

$\mathsf{S}$

are contradictory in regard to the date of arrest and the period the complainantremained in detention.

The Complainant states that he was arrested on 2nd November 2006 and remained in detention for a period of 9 days. CW2, who is the Complainant's wife stated during examination in chief that the Complainant was arrested on 3rd November 2006 and remained in detention for 7 days. When CW2 was cross examined, she stated that her husband was arrested on $3rd$ December 2006 and this she confirmed during re-examination. Further, CW3, a friend to the Complainant, stated that the Complainant was arrested on a date he could not recall but in November 2008.

More so, the lock up register reveals that the Complainant was arrested on $2^{nd}$ November 2006 and released on 13th November 2006.

The question for determination by this tribunal when was the Complainant arrested and for how long did he remain in detention? The period between 2nd and 13th leads me to 12 days and that is in accordance with the lockup register. Could the Complainant have forgotten to calculate well the days yet according to his evidence he was in detention from 2nd to 13th November 2006 and he says he was there for a period of 9 days?Couldthe witnesses have forgotten the date of arrest of the Complainat?? Are the above inconsistencies so grave to warrant deliberate untruthfulness before the Tribunal?

$\overline{\text{of}}$ to the case make reference questions, $\mathbf{I}$ these answering In SerapioTinkamalirweVs. Uganda, SCCA 27/89, in which it was held that it is not every inconsistency that will result in a witness's testimony being rejected. It is only grave inconsistencies unless explained satisfactorily which will usually but not necessarily result into the evidence of a witness being rejected. Minor inconsistencies will not usually have the effect unless Court thinks the point to be deliberate untruthfulness.

$\mathsf{6}$ I therefore find that these contradictions are not grave in nature to warrant deliberate untruthfulness on the part of the Complainant and his witnesses. This is because the major issue in question is whether the Complainant was arrested and detained beyond 48hours; and this is clarified out in the lockup register.

As noted earlier, the Respondent neither called any evidence to rebut that of the Complainant nor filed submissions in defence to question the quality of the complainant's evidence.. The Respondent only cross examined the complainant and his witnesses and hence his evidence was not only solid but largely unchallenged.

WHEREFORE I find on the balance of probabilities that the Respondent's agents violated the Complainant's right to personal liberty. This tribunal faults the state for the failure to produce SembatyaYahaya in court within 48 hours from the time of the arrest (See Article 23(40 (b) of the Constitution of the Republic of Uganda. SembatyaYahaya was therefore in illegal confinement for a period of 11days.

# Whether the Complainant's right to property was violated

The right to property is protected under Article 26 of the Constitution of the Republic of Uganda and Article 17 of the Universal Declaration of Human Rights 1949.

Article 17 (1) of the UDHR provides that everyone has a right to own property alone as well as in association with others. It further provides that no one shall be arbitrarily deprived of his property. Article 26 of the Constitution of the Republic of Uganda is in pari-materia with Article 17 of the UDHR except that the Constitution goes ahead to provide for exceptions and the procedures under which property can be lawfully taken away.

$\overline{7}$

Specifically Article $26(2)$ is to the effect that no person shall be compulsorily deprived of property except if it is necessary for public use or in the interest of defence, public safety or public health, to mention but a few, and the compulsory taking of possession or acquisition is made under a law which provides for prompt payment of fair and adequate compensation prior to taking of possession or acquisition of property, and a right of access to a court of law by any person who has interest or a right over property. If property is taken away in disregard of the procedures provided for by this Article, property is said to be lawfully acquired or possessed thereby violating the right to property by the owner.

The Complainant alleged that on 3rd November, 2006 at 6.00 p.m. one of the officers went with him home to conduct a search. That they found his Shs.100,000/ $=$ and took it. That he was given a document to show that they took his money and this was a Search Warrant which shows that search was carried at his home and Shs.100,000= taken from his home. This was tendered in before the Tribunal and marked as **Exhibit II (CW Exb. II)**. During cross examination by Counsel for the Respondent, the Complainant said that he used to keep his money in the cupboard and in drawers and he went home with three police officers. He further stated that he never recovered the money which was taken by the Respondent's agents even after dismissal of the case by Court for want of prosecution.

# His eye witness NagadyaZaituni (wife) stated and I quote;

"On 4th November at 3.00 p.m. I had gone to a shop. On coming back I found three men one of them in police uniform, the two in civilian and my husband was handcuffed. They had come to search the house and my husband had opened for them. The two in civilian entered and the one in uniform stayed out. Then those who entered picked Shs. 100,000 on top of the cupboard. They left a document behind which I did not read. They went back with him"

There is evidence to show that the officers took the complainant's money amounting to UG Shs100,000/ $=$ . Hence issue two is resolved in the positive.

# Whether the respondent (Attorney General) is liable for the violations against the complainant's rights

As resolved in the above issues, there was a violation of the complainant's right Personal Liberty and Property contrary to Articles 23 and 26 of the 1995 constitution of Uganda.

According to Article 119(4) (c) of the Constitution and section 10 of the Governmentproceedings Act, the role of the Attorney General is to represent Government in any civil proceedings to which Government is party.

The vicarious liability of Government for acts of police officers is derived from the functions of the Government of Uganda which include being responsible for defence, security, maintenance of law and order, as recognized under Article 189 and item 2 in the $6^{th}$ scheduleto the constitution of Uganda 1995 as amended, the furthest end of the criminal justice system in Uganda under the auspices of Government's duty of keeping law and order.

In relation to the law on vicarious liability it is clear that, it is however immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable as stated in**MuwongeVs** A. G (1967) EA 17. It is thus irrelevant whether the acts done by the police officers were unjustified or unauthorized as long as they did such acts in the course of their employment.

Similarly in the case of Jones Vs Tower Boots Co. Ltd 1997 ALLER 40 B the court held that an act is within the course of employment if it is either

(1) a wrongful act authorized by the employer, or

(2) a wrongful and unauthorized mode of doing some act authorized by the employer

In the instant case the Police Officers from CentralPolice Station Kampala arrested Sembatya Yahaya (complainant) and later searched his house and took his money amounting to $100,000/$ =. These police officers both individually and severally worked on behalf of the state which is their master hence it was proper for Attorney General to represent Government in this matter for the police officers who detained the complainant beyond 48 hours and took his money.

Therefore the Attorney General in this matter is vicariously liable for the violation of the complainant's right to personal liberty and deprivation of ownership of property.

### Whether the complainant is entitled to compensation:

Having held that the respondent's servants/agents violated the complainant's right to personal liberty and deprivation of ownership of property, it follows that he is entitled to compensation by the respondent.

Under Article 50 (1) of the constitution of the republic of Uganda 1995, "Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

Further under Article 53(2) of the Constitution:

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

$(a)$

(b) payment of compensation; or

Detaining the complainant for 13days was uncalled for since a search of his house had been carried out and no evidence was found at all. More so, taking his money was an unlawful act by the police officers. Further, the fact that this money was not used as an exhibit in Court and the matter was dismissed for want of prosecution and at no time was the money refunded to the complainant was an act which should be stopped in the forces. I therefore condemn such acts by the officers whose duty is to keep law and order.

In the case of Agaba Bernard Vs. Attorney General UHRR(2008-2011) Commissioner Fauzat Mariam Wangadya held that the complainant was entitled to compensation for violation of his right to personal liberty and that it was the practice of the Tribunal to award U. Shs 2,000,000=( Uganda Shillings Two Million) for every seven (7) days of unlawful confinement.

In the instant case, the Complainant was unlawfully detained at the Police Station for a period of 11days without being produced before Court.

Wherefore, I deem a figure of UgShs. 4,000,000 (Four Million Shillings) adequate compensation to the complainant. I so award.

With regard to the issue of deprivation of ownership of property, this has been proved by the search warrant which was tendered in as an exhibit before the Tribunal. This amount of money was specifically proved by the complainant and therefore the complainant is entitled to special damages of $100,000/$ = (One Hundred Thousand Shillings only)

#### **ORDER**

1. The complaint is allowed.

- 2. The Respondent is ordered to pay to the Complainant a sum of UG Shs. 4, 000,000/- (Uganda Shillings Four Million) as compensation for the violation of his right of Personal Liberty. - 3. The Respondent is ordered to pay to the Complainant a sum of UG Shs. 100,000/- (Uganda Shillings One Hundred Thousand) as special damages for the violation of his right of own Property. - 4. The sum of UG Shs.4, 100,000/= (Uganda Shillings Four Million, One **Hundred Thousand**) will carry interest at court rate from the date hereof until payment in full.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court within 30 days from the date hereof.

Dated at Kampala this ....................................

**STEPHEN BASALIZA** PRESIDING COMMISSIONER