[2025] UGHRC 5


# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **HOLDEN AT MBARARA**

#### COMPLAINT NO. MBR/167/2009

**MUGABO JAMES ::::::::::::::::::::::::::: COMPLAINANT**

#### $-AND-$

**RESPONDENT** ATTORNEY GENERAL ::::::::::::::::::::

#### **CORAM**

$\mathcal{P} = \mathcal{Q}$

| 1. HON. MARIAM WANGADYA | <b>CHAIRPERSON</b> | |-------------------------------|--------------------| | 2. HON. SIMEO MUWANGA NSUBUGA | COMMISSIONER | | 3. HON. JACKLET ATUHAIRE | | | RWABUKURUKURU | COMMISSIONER | | 4. HON. SHIFRAH LUKWAGO | COMMISSIONER | | | |

## **DECISION**

The complainant is a 40 year-old peasant of Rutaba, Sisa, Wakiso District. He brought this complaint against the respondent seeking compensation for alleged violation of his rights to personal liberty, and freedom from torture, cruel, inhuman and degrading treatment.

Mugabo James alleged that on 7^th October 2009, while in Kiriyokya, Kiboga herding cattle, he was arrested by 2 Policemen of Kiriyokya Police Post on suspicion of theft of one Kayongo Mandela's motorcycle. Mandela was at one time his employer. Mugabo denied the accusation saying that by the time he ended his employment at Mandela's home, more than 2 years back, Mandela did not have a motorcycle.

Mugabo said that he was detained at Kiriyokya Police Post for 3 hours then taken to Kiboga Police Station where he was detained until 9^th October 2009. On 9^th October he was taken to Sanga Police Post where he was detained until 12^th October 2009. On 12^th October 2009 he was moved to Rushere Police Station where he was detained until 23^rd October 2009 when he was released on Police bond. He was never taken to court.

Mugabo alleged that during his detention at Kiboga Police Station he was severely beaten by the Officer-in-Charge $(O/C)$ to compel him to confess to stealing a motorcycle and reveal its location. He said he suffered severe pain and injury.

Mugabo contended that the alleged actions of the Police Officers mentioned hereinabove amounted to violation of his rights to personal liberty, and freedom from torture, cruel, inhuman and degrading treatment. He holds the respondent vicariously liable for their actions.

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The respondent's representatives Ms. Anna Kanyago and Ms. Rita Kalembe denied liability in general. But they admitted liability for Mugabo's detention only at Rushere Police Station.

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This case was initially heard by our departed colleague Hon. Justice (Rtd.) Gideon Tinyinondi, and our colleague now, Hon. Jacklet Atuhaire Rwabukurukuru, sitting as sole Commissioners. This decision is therefore based, in part, on their record of proceedings.

Before we go any further we note that when this matter first came up for hearing on 23^rd September 2016, learned Commission Counsel Mr. Albert Mwebaze did something rather strange. He addressed the tribunal as follows:

"With regard to torture, if given an opportunity to conference with the complainant, I strongly believe that we can abandon the allegation of torture and we pursue amicable settlement for the detention at Rushere Police Station".

Why did the learned Commission Counsel choose this path? Why did he opt to trade off Mugabo's torture claim with purported settlement for his illegal detention at Rushere Police Station, more so considering this detention was the easiest claim to prove, and that the state had already admitted the same? Pushing Mugabo to drop his torture claim

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in exchange with settling a claim which had been admitted was a very high price to pay for absolutely nothing!

On 18^th February 2022, when this matter was finally heard before Commissioner Jacklet Atuhaire Rwabukurukuru, Mugabo rightly insisted on having his case heard in its fullness. Indeed in his testimony he proceeded to lay out gruesome particulars of torture he said he suffered at the hands of the Officer-in-Charge $(O/C)$ Kiboga Police Station, one Ojiku.

But when this matter came up for further hearing on 11^th December 2023, learned Commission Counsel, Ms. Kemigisha Birungi Phiona addressed the tribunal as currently constituted as follows:

"The issue of torture was dropped due to lack of evidence. Hearing the matter should proceed only with the issue of personal liberty".

The current tribunal trusted Commission Counsel and acted as guided. It emerged later as we were writing this decision that dropping the torture claim was actually a skewed trade off and had nothing to do with lack of sufficient evidence. As it turned out, the purported settlement was even never effected.

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We were constrained to order reopening of this case owing to the time already lost $-9$ years since a fake settlement was placed on the table. We will therefore confine ourselves to one major issue:

# Whether the respondent's agents violated the complainant's right to personal liberty

The complainant had the duty to prove his case against the respondent on the balance of probabilities. The right to personal liberty is protected by the Constitution of the Republic of Uganda (hereinafter called "the Constitution").

Article 23(1) of the Constitution provides for circumstances under which a person's liberty may be lawfully restricted. Article $23(1)$ supra provides in part:

"No person shall be deprived of personal liberty except in any of the following cases $-(c)$ for the purposes of bringing that person before a court .... upon reasonable suspicion that that person has committed or is about to commit a criminal offense".

Under Article $23(4)(b)$ :

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"A person arrested or detained upon reasonable suspicion of his having committed a criminal offense shall be brought to court as

soon as possible but in any case not later than 48 hours from the time of his arrest".

The right to personal liberty is further protected by international human rights instruments to which Uganda is signatory.

Mugabo's detention at Rushere Police Station was admitted by the respondent. He spent the longest duration of his detention at that station, that is, from 12^th October 2009 to 23^rd October 2009. The admission by the respondent of his detention was based on a letter written by the $O/C$ , Criminal Investigation Department (CID), Rushere Police Station, D/ASP Akello Noreen, to the UHRC referenced **KIR/CID/10/1/47.** This letter reads in part: $\frac{1}{2}$

"Mugabo James was brought to Rushere Police Station on 12^th October 2009 on allegations of stealing a motorcycle registration No. UDJ 328W. On 23^rd October 2009 the suspect was given Police bond as inquiries continued".

The Lockup register for Rushere Police Station during the period in issue contains information affirming that Mugabo was indeed detained at that station as he said. There is also the Police Bond form dated 23^rd October 2009.

The only contentious period of detention was the period preceding $12^{th}$ October 2009. But the letter by the O/C CID, Rushere Police Station partly resolves this issue. It says in part:

$\alpha$ $\alpha$

"Police file **CRB 1117/09** was also brought on the same day from Sanga Police Post".

This tallies with Mugabo's testimony that he was detained at Sanga Police Post prior to being transferred to Rushere Police Station.

The letter by the DPC, Kiboga Police Station SP Sserunjogi Eddie, addressed to the UHRC sealed this case. It said in part:

"Mugabo was arrested and detained at Kiboga Police Station on $7^th$ October 2009 on allegations of stealing a motorcycle. He was consequently transferred to Kiruhura on 9^th October 2009 where he was supposed to answer his charges".

his Jacklet $\overline{I}n$ before Commissioner Atuhaire testimony Rwabukurukuru, Mugabo said that he spent 3 days in detention at Sanga Police Post before he was taken to Rushere Police Station. The days he talked about were 9^th, 10^th and 11^th October 2009. This tallies with the fact that he was taken to Rushere Police Station on 12^th October 2009, a fact that was admitted by the respondent.

Mugabo spent a total of 16 days in the custody of the state.

It was held in Sekaddu v Sebaduka 1968 EA 213 that once the confinement of a person is proved the burden shifts to the defendant to justify the confinement. Rather than attempt to justify Mugabo's detention, the learned State Attorneys spent 9 years pretending that they would settle the matter amicably. The tribunal as currently constituted could not buy their bluff.

The only reasonable conclusion we can make is that Mugabo's detention for 16 days was unjustified, arbitrary and illegal.

Wherefore, we find on the balance of probabilities that the respondent's agents violated the complainant's right to personal liberty. Throughout the period in issue they were acting in the course of their employment as servants of the state. The respondent is vicariously liable for their wrongful actions.

# Whether the complainant is entitled to compensation

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The complainant is entitled to compensation for violation of his human rights. Articles 50 and $53(2)(b)$ refer.

The arrest and detention of Mugabo James was arbitrary as the state offered no explanation for their actions. Once a person's liberty is restricted, other adjunct rights flowing therefrom are equally restricted,

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for instance, the right to work, the right to freely associate with others of his choice, the right to procreate etcetera. It is the reason the law places the burden on the authority depriving a person of his liberty to explain why the arrest and detention was necessary.

In consideration of the above, we deem U. Shs.6,000,000= (Six Million Shillings) adequate compensation to Mugabo James for violation of his right to personal liberty.

### **ORDER:**

- The complaint is allowed in part. $(i)$ - (ii) The ordered the complainant respondent is to pay U. Shs.6,000,000= as general damages for violation of his right to personal liberty. - (iii) The U. Shs.6,000,000= will carry interest at 10% per annum from the date hereof until payment in full.

Either party dissatisfied with this decision may appeal to the High Court of Uganda within 30 days from the date hereof.

DATED at Mbarara this ....................................

HON. MARIAM WANGADYA

**CHAIRPERSON**

HON. SIMEO MUWANGA NSUBUGA

COMMISSIONER

$\hat{I} = \hat{I}$

**COMMISSIONER**

HON. JACKLET ATUHAIRE **RWABUKURUKURU**

HON. SHIFRAH LUKWAGO

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**COMMISSIONER**