Tukamuhebwa and Others v Attorney General (Civil Suit No. 779 of 2004) [2006] UGHC 90 (28 March 2006)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **CIVIL SUIT NO. 779 OF 2004**

TUKAMUHEBWA GEORGE & ORS PLAINTIFFS

### **VERSUS**

ATTORNEY GENERAL DEFENDANT

**BEFORE: THE HON. MR. JUSTICE R. O. OKUMU WENGI**

#### **RULING:**

The thousands of Plaintiffs in this case claim for declarations and compensations for alleged deprivations violation of constitutional rights to lO education and associated property rights. It is stated that these rights were violated by the government when in 1992 the plaintiffs were uprooted from Mpokya Sub County in the Kibaale First Reserve and Game Sanctuary. As a result of the evictions the Plaintiffs who were then school going children in the area were uprooted together with their parents. It is contended that the action deprived them of education, livelihood and a place to live and study in when their schools were forcefully destroyed by government officials. In the plaint the Plaintiffs say they were minors at the time and as such they couid not bring any action or defend themselves.

The defendant denied liability and raised preliminary points of law for decision of this court. Firstly it was argued that the suit was time barred in so far as the cause of action arose in 1992. Mr. Joseph Masiko learned

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counsel who appeared for the Attorney General dismissed the plea of disability whereby the Plaintiffs claimed that they were minors a.id as such were not until now competent to sue. He contended that they could have sued by their next friends or their parents who indeed filed a similar case in 1993 and were paid compensation. Secondly counsel for the state argued that the plaint does not disclose a cause of action as the right to education was not enforceable in law. He contended that there was no right breached when the government did not erect or maintain schools in a game park. Thirdly the senior Lawman told court that the matter of the Mpokya evictions was res judicata since the plaintiffs parents sued on the same facts in the **Benon Turyamureeba** case and got judgment. Counsel stated that the evicted parents sued for their eviction and their children cannot bring a fresh claim in their own right.

In answer Mr. Kamugisha learned counsel for the Plaintiffs contended that the previous cases namely HCCS No. 207/93 **Benon Turyamureeba and 132 others Vs Attorney General** and Misc. Application 192 of 2000 were on different matters. That the res judicata rule requires the matters in issue in the previous suit to be similar to those raised in the new one. Counsel argued that in those cases there were 133 parents but that those were not necessarily parents of the present 1818 plaintiffs unless evidence is adduced. He suggested that the 133 may not even have had any children at school and that none of the present plaintiffs parents was a plaintiff in those previous cases.

Counsel then submitted that under articles 30 and 24 of the constitution the right to education is protected. That by destroying the schools in which the

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> on children studied, had books, uniforms and paid fees the defendant had deprived the children of a constitutional right to education and to their dwellings. He further argued that failure to absorb the children in other schools or refund their fees there being no UPE at the time, was a violation of the plaintiffs constitutional rights... That when they were resettled they were left in forlorn bush and wilderness in which there were no schools or homes whatsoever and their parents pre occupation was to build shelters and find food. That further, the cabinet sub committee undertaking to provide free education was premised on acknowledgment of the constitutional duty owed to the plaintiffs by the government.

> On the issue of limitation learned counsel for the plaintiffs contended that when they were uprooted from their cradle in Mpokya they got scattered in the Kibaale Kyenjojo Hoima diaspora and were minors at the time and could not in those circumstances coordinate the lodging of this suit, until now. Counsel urged that this court should not shut out the Plaintiffs from justice which was denied them by procrastinations and empty promises made by the defendants officials. He stated that no limitation may be imposed on constitutional rights. He prayed court to dismiss the objections raised by tiie defendant.

Firstly it not in doubt that immediately the Mpokya incident occurred those giO affected came to this court. The case was heard and compensation was eventually paid to 1,230 persons affected. In this respect it is not accurate to say that the case benefited 133 people. These only brought a test suit the result of which enabled thousands to benefit in compensations in billions of shillings. The success of those beneficiaries were part of a magnanimous

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award in terms of social justice to the settlers in the Kibale Forest Reserve/ Game Corridor. They had settled there under Game (Preservation and; *i* control) Act and their removal only did not conform to the procedures under! i the Forest Act in so far as the method was oppressive and high handed.1 I This is not to say that the state recognized their right to stay in and occupy |the area in the same way other occupants of land elsewhere do. The matter j of Mpokya people was therefore closed or so it seemed.

Now articles 30 and 34 of the constitution do state simply that "All persons have a right to education" and "A child is entitled to basic education which shall be the responsibility of the state and the parents of the child." According to the social and economic objectives of the National Objectives and Directive Principles of state Policy the state is enjoined to promote free and compulsory basic education. They stipulate also that the state shall take appropriate measures to afford every citizen equal opportunity to attain the highest educational standard'as possible. Then they state that individuals, religious bodies and other non governmental organizations shall be free to found and operate educational institutions if they comply with the general educational policy of the country and maintain.national standards. There are a number of Education Acts. For instance the Education Act (cap 127) sets out the regulatory framework for the organization and Management ofx educational institutions. There are also a number of laws relating to special education, universities and Tertiary Education and examinations. However while Uganda has set in motion a phenomenal primary education programme there is no law yet providing'for compulsory education. The Education Act itself remains a skeletal regulatory framework and falls short of any statutory duty to provide and to receive education. Further still there

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is no description of any pedagogical substance in any of the Education laws such that instruction or other related concepts are left to the institutions. It is not to say that there is no legal system in place. A lot has been developed in vocational professional secular and religious education and a number of professional and regulatory bodies have been developed ranging from nursing to legal education professional regulation. Many areas such as borstal institutions remain wanting but significantly there is no law in place to operationalise the constitutional right to education that the plaintiffs in this case seek to enforce. Therefore it can be said that the social economic right to education remains a nominal constitutional right of both children and adults and it is unclear just how justiciable it may be in given circumstances and how it may possibly be enforced. I must point out right away that the plaintiffs are not children. They are adults who are free to pursue adult education and as such have a right to adult education. But that is not their claim. They claim a loss of childhood education and seek declarations of this court that they lost these rights on account of the action of the government in displacing their parents from-thier childhood national park settlements and the schools there. They would want compensation on this account. The rights of the child have been set out in the Children Act (CAP **o £>** 59) which stipulates that:-

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"it shall be the duty of a parent, guardian... to maintain that child an in particular that duty gives a child the right to education and guidance..."

In other words according to the Children Act the duty to provide education and guidance to a child is squarely on the parent, guardian etc. Essentially therefore the law places the child's up bringing within the family mandate.

**5** The children's Act virtually codified international covenants on the Rights of the child.

According to Welshman Ncube in Law Culture Tradition and Children's Rights in Eastern and Southern Africa, Dartmouth Ashgate, Hampshire 1998,

"The International Instruments relevant to children's rights in eastern and southern Africa and which reflect and represent the normative consensus achieved on the international law plane include: the Declaration of the Rights of the child adopted by the league of Nations 1924, the Declaration of the Rights of the child adopted by the united Nations in 1959, Article 25(2) of the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights of the child and the African-charter..."

And then parts of the International Covenant on Economic Social and Culture Rights (the social covenant) relating to children, constitute binding international law namely:-

"the obligation to provide the widest possible, protection and assistance to the family as the natural and fundamental group unit of society, particularly for the care and education oi dependant children."

Article 13 of the convention specifically providing for the right to education is relevant to children's needs. Therefore whereas the government is bound by the constitution and international law to ensure the right to education of the io

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child and of all persons the primary legal duty rests on the family and the parents of the child. Indeed Uganda is ahead of many African countries in the area of child legislation and child rights and the seminal features of free universal primary (UPE) and a mooted universal secondary (USE) education are well under'way. But even then as I said earlier there is no legal regulation that introduced compulsory education such as would compel children even in ordinary social settings to go to school. In any case the issue here is to balance the freedoms and fundamental rights of the parents and the rights of their children. Relevant international instruments as cited above put the right to life first then they emphasize the rights and duties of VO parents to determine the course of a child's upbringing. The courts will respect the parents choices and may intervene where necessity requires it to uphold the child's interests: See Re J (an infant): Director General of Social Welfare Vs Bond B (1995) 3 NZLR, 73 (HC). In the present case the parents made daring choices in exercise of their freedom of movement. As they settled' in the Mpokya reserves it was well within their enterprise as the parents of the children in question to provide for their education and upbringing. And if their settlements are accepted and recognized then the , **h** district or the state as the case may be might be obliged to extend social services to them. But if they get removed from their settlemei/s it may be a p\_O moot point how far backwards the victims, if one can call them such, can recover arrears of social services they could have got if their settlements had • been left intact. Now do the present litigants have a cause of action in law or not? The question is answered by perusal of the pleadings: Auto Garage Vs Motokov No. 3 (1971) EA 514. But where a district issue is raised as a point of law set down for argument as a preliminary point a suit which is not maintainable can be struck out: See Kayondo Vs Attorney General (1989)

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**IO** 4 **1***1* 1 KALR 37. In the present case both aspects of the matter seerfito present themselves and including questions of time bar, limitation and of course justiciability. To'answer the question, I am afraid that I find this claim rather intriguing and peculiar. Firstly the plaintiffs are no longer children. Secondly / their parents occupied a national park area leaving behind settlements with government and private schools. There was no war where their parents originated. They were not in internally displaced Peoples (IDP) camps such as those in Northern Uganda where the LRA war has raged. When the government decided to remove them from the national Park area they were taken elsewhere. Those of them or the parents of others who sued were compensated. This court cannot find that since that earlier suit was settled or succeeded therefore the plaintiffs there or new plaintiffs in this case have or had a cause of action to sue the government. Without showing less sympathy towards people who may have been pressed to settle in the national parks or forests I must say that these were not forced migrations as such and that the migrants moved in search'of virgin pastures, more open land and natural resources and a better though forbidden natural environment. But the fact is they left schools operating where they came from and sought new territory. I would not agree that the state must rush services to settlers wherever they go including areas reserved as national pJO heritages and environmental sanctuaries where social economic infrastructural developments did not exist. I am unable to say therefore that the offspring of those migrants some of whom successfully claimed compensations for being removed from protected common property, can see social educational infrastructure in the ordinary settlements and claim their migrant deprivations. They cannot legitimately claim that they missed out. They can enroll for adult education programmes and can place their children

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**■1** in schools that are operational. This is a country with a large illiterate population even among people in ordinary settlements. For instance people in areas under civil strife many have not attended school. This court cannot say that those removed from game park locations have a special cause of action to sue for deprivations or imbalances in the social infrastructural networks and possibilities where human populations are sealed. Having said this I agree with the state counsel that the adult plaintiffs in this case have not demonstrated by their plaint a cause of action for compensation and declarations for enforcements of a right to education or livelihoods or at all. Enforcement of social economic rights presents difficulties in a poor country like Uganda in which others can enjoy fresh wild berries and free game meat while others line up for ever insufficient food aid and yet children in both situations are not going to school. It is my conclusion that the adults **A** and able bodied men in the present case have no cause to come to this court to seek the declarations and compensations long after adults in the same category received compensations through this court. There was no reason why the parents of these plaintiffs failed to join in the ejdier cause so that all questions of the Mpokya settlers could be resolved once and for all. If this were not the case the cousins of the present plaintiffs could choose next year to bring a new suit claiming they did not know of the present case. Indeed as soon as this case was filed in October 2004, Twesigye Enock and 903 others sought in their Misc. Application 523 of 2005 to join in this case as co plaintiffs. Then another 900 or so odd litigants sought under Misc. Application 208 of 205 to join the suit which was gathering new plaintiffs by the day. There can hardly be an end in sight as new, more and more so i called Mpokya settlers may surface. Indeed even the children of the present plaintiffs might invoke their remote title to sue as may the relatives of the first

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beneficiaries of the Mpakya pay offs do. In other words there must be an end to the Litigation by the Mpokya evictees or their offspring or relatives. In any case by the time of the 1992 evictions the constitutional right to education had not been promulgated. And by the time o' this suit the plaintiffs were too old to claim childhood deprivations and could fend for themselves and access adult education programmes. In saying what I have stated this court is alive to the fact that a suit by a child is not necessarily res judicata because a parent had sued. It depends on the alleged cause. A case in point illustrates this. In **C (a minor) Vs Hackey London Borough Council** (1996) 1 WLR 789 (CA) the plaintiff was a female child suffering from Downs Syndrome. Her mother was the tenant in a council house which was in a bad state of repair and was damp. This aggravated the child's recurrent bouts of chest and upper respiratory infection. The mother sued and a consent Judgment was recorded enabling the immediate repair of the house and payment of damages. The child then sued in her own right through a next of friend for damages for negligence and breach of statutory duty, and got a default decree. The decree was set aside on grounds of res judicata and abuse of the process she then appealed. The court cf appeal held that though it was preferable to have the suit of all members of the same household heard together the claim by the child was distinct and was Q^l not barred by the mother's earlier suit. I

However in the present case the cause urged by the plaintiffs is of doubtful justiciability and they are still entitled to adult education anyway. Their other claim is in the same terms as that raised in the previous case and the Mpokya dispute was completely and effectively concluded by that previous

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case and the payment of compensation under it. If this was not the case the matter would have been different.

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As I stated earlier this claim is peculiar and is like the dung beetle's burden. The suit is not maintainable in law by way of a plaint or otherwise and is barred by law. For these reasons and on account of what I have earlier stated this suit must be dismissed as I do allow the points as raised by the Attorney General with costs.

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R. O. Okumu Wengi **JUDGE** 28/3/2006.

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Kamugisha for Plaintiff Mwaka for Attorney General Senabulya Court Clerk. Plaintiffs present.

## **Court:**

Ruling read in open court in the presence of above persons.

R. O. Okumu Wengi

**JUDGE** 04/04/2006.

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