Tumuhairwe v Attorney General (Complaint No: UHRC/ FPT/24/20I3) [2022] UGHRC 19 (17 January 2022)


## **THE REPUBLIC OF UGANDA**

## **THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

## **HOLDEN AT FORTPORTAL**

#### **COMPLAINT NO: UHRC/ FPT/24/20I3**

**TUMUHAIRWE HOPE J:::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**AND**

### **ATTORNEY GENERAL I::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## **{BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO1**

## **DECISION**

The Complainant (C), Tumuhairwe Hope alleged that on 1st January 2013 at around 7:00a.m, she was arrested from her home by two uniformed Police Officers attached to Kahunge Police Station on the allegation that she knew the whereabouts of two people namely; a one Muhumuza and Ninsiima whom the Police was searching for. That she was taken to Kahunge Police Station and detained in a cell as the Police continued searching for Muhumuza and Ninsiima. That at round 7:00p.m, she was taken out of the cell and transferred to Kamwenge Police Station and detained for one month and two days and thereafter transferred to Fort portal Police Station where she was detained for four days before she was produced before court.

C therefore prayed to the Tribunal to order the Respondent (R) to pay her compensation for the violation of her right to personal liberty by state agents.

R who was represented by three counsel (RC's) namely Mr. Rwanama Hannington, Ms. Atumanyise Racheal and Mr. Isaac Singura denied liability and opted for putting up a defense in the matter. However, the aforementioned R's representatives only cross examined C and her one witness. No defense case was put up to rebut C's allegations as had been initially suggested by R'<sup>s</sup> side. R's counsel also suggested for an amicable settlement of the matter, but the same did not yield any positive results.

## **Issues**

The Issues to be determined by the Tribunal are:

- 1. Whether the C's right to personal liberty was violated. - 2. Whether the R (Attorney General) is liable. - 3. Whether the C is entitled to any remedy.

However, before I determine the above-mentioned issues it is pertinent for me to note that, that this matter was heard by my colleague Hon. Commissioner Katebalirwe Amooti Wa Irumba and it is from his record of proceedings that I have arrived at this decision.

C was expected to discharge the duty of proving her case against R to the satisfaction ofthe Tribunal, as required under Section 101(1) ofthe Evidence Act Cap 6, which provides that:

> Whoever desires any court to give judgment as to any legal right or liability dependent on the existence offacts which he or she asserts must prove that the facts exist.

Additionally, Section 102 ofthe Evidence Act provides that:

The burden of proofin any suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

It should be noted that according to Rule 23(1) of the Uganda Human Rights Commission (Procedure) Rules 1998, the Tribunal shall make a decision based on a balance of probabilities.

Let me now resolve the aforementioned three issues that have been raised before the Tribunal.

## **1. Whether the Complainant's right to personal liberty was violated.**

**C, Tumuhairwe Hope** testified that she was 24 years old and married with two children. That on 1st January 2013 at around 7: OOa.m, while she was at her home, she was arrested by two uniformed Police Officers attached to Kahunge Police Post on allegation that she knew the whereabouts of a person they were looking for. That she asked for the details of the person they wanted and they told her that she would be told about that person's particulars from the Police Post. That she was taken to Kahunge Police Post and asked if she knew a one 'Ninsiima and Muhumuza. That she told the Police that she knew them but that she had only seen them on the previous evening. That she also told them that she did not know their whereabouts that day.

She testified further that she was thereafter detained in a cell as the Police Officers continued to search for the two people. That Ninsiima was found at around 5:00p.m and detained in the cell at the Police Post. That at around 7:00p.m, she and Ninsiiima were taken out of the cell to a double cabin where they found Muhumuza's dead body. That the Police told them to go with them together with the body to Rukumjwa Health Center IV and when they reached, the body was removed and they (herself and Ninsima) were taken to Kamwenge Police Station, their statements recorded and detained.

She added that on the next morning, she was interrogated and threatened to be beaten. That she was promised to be released if she told the Police the truth about the murder. That she told the officers that she knew nothing. That she was detained at Kamwenge Police Station for one month and two days before she was produced before court at Boma. That on that day when she was taken to court, it was closed so she was taken to Fort portal Police Station and detained. That after four days she was produced before court and remanded at Katojo Prison. That after she had spent six months in prison, court dismissed the case against her and she was released.

The certified copy of the lock up register from Kamwnge Police Station was admitted with the consent ofRC's counsel as CXI.

During Cross-examination, C affirmed that she was arrested on 1st January 2013 by Police Officers attached to Kahunge Police Post and taken to Kamwenge Police Station on that very day when she was arrested. She further affirmed that she was detained at the Kamwenge Police Station for one month and two days before she was taken to the Court at Kahunge. She asserted that on that day when she was taken to court the Magistrate was not at the court, so she was taken to Fort Portal Police Station and detained for four days and thereafter produced before court and remanded at Katojo Prison. That when she was produced before court at Fort Portal, she was released because the court did not find a case for her to answer.

**CW1, Bernard Turyamwijuka** testified that he was the biological father of C. That in January 2013, C was arrested from a restaurant in Kahunge where she was working from at that time. That his (CW1 's) home was located at a distance ofthree kilometers from Kahunge but he received the information regarding C's arrest from her workmates. That after her arrest, she was taken to Kahunge Police Post and detained for two days and thereafter transferred to Kamwenge Police Station. That he visited C while she was detained at the Police Station several times and he was allowed to give her food. That C was detained at Kamwenge Police Station for one month before she was remanded at Katojo Prison.

During cross examination, CWI affirmed that C was his biological daughter, adding that when C was arrested, he was not at the scene but that the Police contacted him by telephone on that very

day. That it was the owner ofthe hotel where C was working also informed him about C's arrest. He clarified that the arrest was effected in 2013 but he could not remember the exact date. That by the time he reached Kahunge Police Post, he found when C had been taken to Kamwenge Police Station. That C was detained at the Police Station for one month and thereafter remanded at Katojo Prison.

During re-examination, CW1 asserted that he did not come with the Complainant when she was brought to Fort portal nor was he present when she was produced before court.

Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), 1966 provides that everyone has the right to liberty and security ofperson; and therefore no one shall be subjected to arbitrary arrest or detention. In addition, Article 9 (3) of the same Convention provides that everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release.

Furthermore, the African Charter on Human and People's Rights, 1986 also provides under Article 6 that every individual shall have the right to liberty and to the security ofperson. That no one may be deprived ofhis freedom except for reasons and conditions previously laid down by the law.

The 1995 Constitution ofthe Republic ofUganda adopted the above mentioned provisions under Article 23 in order to ensure that procedural requirements and exceptions to the deprivation of personal liberty are expressly provided for. Article 23 of the Constitution therefore provides for the right to personal liberty and is to the effect that no person shall be deprived ofthe same. Clause l(a-h) ofthe aforementioned Article provides for exceptional circumstances under which a person may be deprived ofthe said right, and they include: -

- (a) In execution of a sentence or court order, - (b) For the purpose of bringing the suspect person before a court, - (c) For the purpose of preventing the spread of an infectious or contagious disease, - (d) The purpose of educating or welfare of a person below the age of eighteen, - (e) in case of a person who is suspected to be ofunsound mind or addicted to drugs or alcohol, for the purpose of care or treatment ofthat person or the protection ofthe community, - (f) For the purpose of preventing unlawful entry into, affecting the expulsion or extradition or other lawful removal ofthat person from Uganda, - (g) Other reasons as may be authorized by law.

Article 23(4) (b) further provides that a person arrested or detained upon reasonable suspicion of his or her having committed or is about to commit a criminal offence under the laws of Uganda shall be charged in a court not later than 48 hours from the time of arrest.

Therefore, in my in consideration ofC's allegation regarding the violation of her right to personal liberty, I have sought to establish whether C was actually arrested and detained by the aforementioned State agents, whether the detention was in accordance with the exceptions provided under Article 23(1) (a-h), and whether the requirement to produce C before court not later than 48 hours was complied with.

# In **STEPHEN ERAU AND ORYEM D/ASP AND 3 OTHERS; UHHR [2002J35,** it was held that:

*Any arrest and detention contrary to the circumstance outlined under Article 23(1) ofthe Constitution is a violation ofthe right to personal liberty.*

I am also cognizant of the fact that the duty to prove that the detention was lawful lies on R. On the other hand, my view is that once it is proved by C that he was detained and his right breached, that would be sufficient for the Tribunal to discharge the burden of proof from C. For instance in the case of **SAFATI KIWANUKA VS KAMULI DISTRICT ADMINISTRATION, (1994-95) HCB 74,** Justice Kato held that:

> *Once the Plaintiff has proved the fact ofhis arrest, it is up to the defendant to prove that the arrest was lawful.*

C vehemently claimed that she was arrested on 1st January 2013 and detained on the allegation that the she knew the people that the Police was searching for connected to a murder case. Her evidence was corroborated by CW1 who followed up her case immediately after her arrest and visited her several times while she was detained at Kamwenge Police Station. C's evidence was further corroborated by CXI which revealed that C was admitted at Kamwenge Police Station on 2/1/2013 and taken to court on 3/2/2013. C also vehemently stated that on 3/2/2013 when she was to be produced before court, it was closed so she was taken and detained at Fort portal Police Station for four days and thereafter produced before court. RC cross- examined C and CW1 but their evidence regarding C's detention at Kamwenge Police Station was not shaken in any way. The aspect of C's detention at Fort portal Police Station was not challenged at all.

As I have already stated, R did not present any defense witnesses to rebut C's prosecution evidence. R's side also did not give any explanation as to why C was arrested and detained by the aforementioned state Agents. It is however notable that during the hearing R's side prayed to the Tribunal that the matter be settled amicably with C because he did not have a witness to present to defend the complaint. In response to this prayer, C made a settlement proposal to R in writing of Ugx. Shs. 9,000,000/= (Nine Million Uganda shillings only) dated 11th May 2018. This proposal was however unfruitful and in the long run, when the matter came up for hearing, RC prayed that the proposal to settle the complaint amicably be dropped because their office had failed to obtain a response from the Solicitor General. RC further prayed to the Tribunal to allow them file written submissions to that effect. Accordingly, the Tribunal granted R's side one and a halfmonths to file submissions. The attempt by the Tribunal to accord R's side adequate time to comply with the Tribunal ruling was also unfruitful.

The foregoing explanation notwithstanding, the Police may have had all reasons to arrest C as per the provision enshrined under Article 23(4) (b) part (a) but failed to observe the requirement or producing her before court within forty-eight hours..

Therefore, in concluding this issue, I have assessed the evidence and found that C's right to personal liberty was violated by State Agents attached to Kamwenge and Fortportal Police Stations when they detained C beyond 48 hours that is; for 35 days having without any explanation.

## **Issue 2: Whether R (Attorney General) is liable.**

The aforementioned State agents who violated C's right were employed by the government to execute State duties in line with the 1995 Constitution of Uganda and the Police Act Cap 303. Thus, all civil proceedings to which the government is a party are defended or presented by the Attorney General of Uganda. This mandate is enshrined under Article 119(4) (c) of the Constitution and it is on that basis that the Attorney General must be held vicariously liable for the omissions ofthe aforementioned State agents.

#### **Issue 3: Whether the C is entitled to any remedy.**

Article 23(7) ofthe Constitution provides:

*That a person unlawfully arrested, restricted or detained by any other person or authority shall be entitled to compensation from that other person or authority whether it is the State or an agency ofthe State or other person or authority.*

Furthermore, Article 53(2) (b and c) ofthe Constitution states that:

*The Uganda Human Rights Commission may ifsatisfied that there has been an infringement ofa human right orderfor compensation to be paid to the victim or any other remedy or redress.*

Accordingly, it was resolved under Issue <sup>1</sup> above that C's right to personal liberty was violated by State Agents. C therefore deserves to be compensated accordingly. In order to determine suitable quantum ofthe damages to be awarded for the violation under consideration, I shall consider the following important elements:

a) The specific nature ofthe violation already proved to have been committed by State agents.

b) The constitutional status ofthe specific right that has been violated: whether positive and subject to limitation under the relevant laws, or absolute and non-derogable.

c) The fact that the Complainant was acquitted by court after having been found to have not committed the alleged crime for which he had been arrested by Police.

d) Previous awards in cases or complaints similar to the instant one.

e) The value ofthe money to be awarded for damages, taking into account its purchasing power under the current national economic conditions; as well as the time lag from the time when the violation was committed up to the time ofmaking this decision; and

f) The capacity ofthe Respondent to pay the awarded damages, taking into account the current national economic conditions and overall government revenue status

Taking into consideration all the above factors, and adopting the methodology applied in earlier cases in awarding victims of violations similar to this one for instance in the case of^4g«6a *Bernard Vs. Attorney General UHRC(2008-2011) Hon. 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 ofthe Tribunal to award Ug. Shs 2,000,000=( Uganda Shillings Two Million) for every seven (7) days of unlawful confinement. Ug. Shs.2, 000,000 (Uganda Shillings Two million) divided by 7 (seven) days gives us Ug. Shs.300, 000 (Three hundred Thousand shillings) per each day ofillegal detention. That practice has not changed. <sup>I</sup> shall therefore award the Complainant Ug. Shs.8,000,000= (Uganda Shillings Eight million) for the 30 days spent at Kamwenge Police Station and Ug. Shs. 1,000,000 (Uganda Shillings One million) for the extra three days spent at Fort portal Police Station in illegal detention as adequate compensation for the violation ofC's right to personal liberty.

I therefore order as follows.

#### **ORDERS:-**

- 1. The complaint is allowed wholly. - 2. R (Attorney General) is ordered to pay to C, Tumuhairwe Hope a total sum of UGX 9,000,000= (Uganda Shillings Nine million only) for the violation of her right to personal liberty. - 3. Each party shall bear their own costs. - 4. Either party not satisfied with the decision ofthe Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision.

So it is ordered.

**DATED AT FORTPORTAL ON THIS DAY OF 2022.**

**SHIFRAE KWAGO PRESIDING COMMISSIONER**