[2018] UGHRC 20


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **HOLDEN AT KAMPALA COMPLAINT NO: UHRC/09/2007**

SEMAMBO SSESANGA RONALD :::::::::::::::::::::::::::::::::::: -AND-

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

## **DECISION**

## [BEFORE HON. COMMISSIONER MEDDIE B. MULUMBA]

The matter was lodged before the Tribunal by Semambo Ssesanga Ronald (now deceased) aged 38 years, a resident of Kyanarungi Village, Kyabahuhu Parish, Kiryandongo Sub County, Kiryandongo District and Mwebesa Moses who alleged that on 8^th December 2006, they were arrested and detained at Kampala Central Police Station for 4 days. That on 12^th December 2006 they were transferred to Kiira Road Police station where they were further detained without trial until their release on Police bond on 11^th January 2007.

The Respondent represented by Counsel Batanda Gerald denied the allegations.

The matter came up for first time hearing on 17^th May 2013 before Commissioner Violet Akurut Adome. At the Tribunal hearing, the following issues were framed for determination:-

- 1. Whether the Complainants' right to personal liberty was violated by the Respondent's agents? - II. Whether the Respondent (Attorney General) is vicariously liable? - III. Whether there are any remedies available to the Complainants?

At that hearing, Semambo Ssesanga Ronald was present while Mwebesa Moses and the Respondent were absent despite the service of summons. The matter proceeded exparte against Mwebesa Moses and the Respondent. Examination in chief was carried out on Semambo Ssesanga Ronald, Jacky Nalongo Ndikubuimana (CW 1) and Nanyonjo Prossy (CW 2). The matter came up on 12^th August 2013 specifically for cross examination of Semambo Ssesanga Ronald, CW1 and CW2. At the hearing, Mwebesa Moses and the Respondent were absent. An order was made for substituted service upon Mwebesa Moses. The matter was then adjourned to enable the Respondent cross examine Semambo Ssesanga, CW 1 and CW 2.

On 10^th February 2014, the matter came up for further hearing specifically for cross examination of Semambo Ssesanga, CW1, CW2 and the hearing of Mwebesa Moses' testimony. Mwebesa Moses was not present at the hearing despite receipt of summons and was accordingly struck off for nonappearance (See also Eperu George and Attorney General UHRC/SRT/80/2009). At the hearing, the Respondent was represented by Counsel Gerald Batanda.

On 23^rd April 2015 the matter came up for further hearing. Commission Counsel Esther Nazziwa Juuko informed the Tribunal that the Complainant Semambo Ssesanga had passed on in July 2014. Commission Counsel prayed for a Condemnation Notice to issue against the Respondent. This praver was not granted.

On 23^rd October 2017 the matter came up for hearing before me. The Respondent was not represented and an order was made that the Respondent should file submissions within two weeks. At the time of writing this decision, no submissions

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have been filed by the Respondent. The Tribunal therefore proceeds to make this decision based on the evidence on record.

Although there is no defence from the Respondent, the Complainant had the burden to prove the allegations against the Respondent on a balance of probabilities (Section 101 (1), 102 of the Evidence Act Cap 6; Nuldine Kasibante and Attorney General UHRC/MSK/032/2011; Okello Tom Ibrahim & Another vs Attorney General UHRC/G/88/2005).

I will therefore proceed to resolve the issues raised.

With regards to Issue 1, Semambo Ssesanga Ronald testified that at around 11:00 am on 8^th December 2006 while he was at his home at Kitegomba Village, a one Bachaila Tom who was in the company of Kizito Tom and Mubiru arrested him. He was taken to the home of the Chairman LC 1. He was later taken to Kampala Central Police Station where he was detained on allegations of murder and detained for three days. On the 4^th day he was transferred to Kiira Police Station where he recorded a statement. At Kiira Road Police station he was detained with Mwebesa Moses for 30 days. Later their file was transferred to the Magistrate's Court which ordered for further investigations of their case. After investigations, the State Attorney found that they did not have a case to answer. They were then released on Police bond by Kiira Road Police Station on 11^th January 2007. The complainant tendered in the certified copy of the Lock up register from Kiira Road Police Station Exhibit I.

CW1 testified that she was married to Semambo Ssesanga Ronald. Together with CW2, they visited Semambo Ssesanga Ronald and Mwebesa Moses twice in detention at Kampala Central Police Station. Semambo Ssesanga Ronald and Mwebesa Moses were later transferred to Kiira Road Police Station and they also visited them and were released after one month.

CW2 testified that she was married to Mwebesa Moses. That Mwebesa Moses informed her of his detention at Kampala Central Police Station. Together with CW1

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they went to Kampala Central Police Station to visit Semambo Ssesanga Ronald and Mwebesa Moses. They found them in detention and visited them twice. On the 3^rd day when they went to Kampala Central Police Station, they found that Semambo Ssesanga Ronald and Mwebesa Moses had been transferred to Kiira Road Police Station. On the same day they went to Kiira Road Police Station and found them in detention. Semambo Ssesanga Ronald and Mwebesa Moses spent almost one month in detention.

Article 23(4) (b) of the Constitution of the Republic of Uganda 1995 provides that "a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal 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." (See also Article 6 of the Universal Declaration of Human Rights 1948, Article 9 of the International Covenant on Civil and Political Rights 1966 and Article 6 of the African Charter on Human and Peoples' Rights) In addition Section 25 (1) of the Police Act Cap.303 provides that a person arrested upon suspicion of having committed a criminal offence, can only lawfully be detained under Police custody for a period not exceeding 48 hours (See Tims vs John Lewis & Co Ltd [1951] 2 KB 459; SGT Jackson Cherop vs. Attorney General UHRC/ G/ 288 /2000; Kasumba Ali and Attorney General UHRC/MSK/75/2009).

In Egesa Nour and Attorney General, UHRC/280/2004 Commissioner Constantine K Karusoke held that although Article 23 provides circumstances that precipitate derogation of the right to personal liberty, sub Article (4)(b) limits the duration of such derogation to 48 hours only. There is no any legal alternative to this position. Interference with a person's liberty can take place only under restrained conditions because in a constitutional democracy, personal freedom is highly prized.

From the evidence on record, Ssemambo Ssssanga Ronald was in detention at Kampala Central Police Station for three days. The Complainant's allegations are corroborated by testimony of CW 1 & 2 who visited him in detention. Exhibit 1 indicates that Semambo Ssesanga Ronald was in detention at Kiira Road Police Station vide Serial Number 5757 from the 12^th December 2006 on allegations of murder until 11^th January 2007; a period of 30 days when he was released. In Hassan Nkalubo and Attorney General UHRC/S/233/2005 it was held that Lockup Registers are conclusive evidence of detention. As per Exhibit I Semambo Ssesanga Ronald was in Police custody for a period of 30 days; when the 2 lawful days permissible under Article 23 (4) of the Constitution of the Republic of Uganda 1995 are deducted from the 28 days of illegal detention remain. The officer in charge at Kira Road Police Station had the option of granting him Police bond.

Commissioner J. M Aliro Omara in Walter Nyangas C and Attorney General UHRC/373/2003 held that it is not the duty of the Complainant to prove that his arrest or detention was legally unjustified. All the Complainant has to do is to prove that he was arrested and detained and that he contests the legality of that arrest or detention. The onus therefore lies with the Respondent to justify the over detention (Fred Biryomumaisho and Attorney General UHRC/253/2003; Ariko Moses and Attorney General UHRC/402/2003; Ayile Rajab and Attoreny General UHRC/ARU/03/2008).

The Respondent did not call any witness and as earlier noted, no submissions were filed by Respondent's Counsel. In George Asiimwe vs Attorney General HCCS 48/1997 where the plaintiff closed his case and the defendant offered no defence, it was held that the plaintiff's evidence was not controverted and had to be accepted as the truth (see also Wasswa Samuel and Attorney General UHRC/482/2001).

The Government has, not only a statutory duty, but also a Constitutional one, not to detain an individual in police custody for more than 48 hours without releasing him/her or producing him before a court of law (see Cpl Opio Mark vs Attorney General HCCS 611 of 2006; Mwebembezi Justus and Attorney General **Attorney** General UHRC/MBA/079/2007: **Ahimibisibwe Dovito** and

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UHRC/MBA/038/2009; Ssonko Zubaili and Attorney General UHRC/1137/2000). It follows therefore that the Complainant's illegal detention in Police custody for 28 days beyond the 48 hours was unlawful by reason of being contrary Article 23(4) of the Constitution and Section 25 of the Police Act, Cap.303 (see also **Patrick John** Mukasa vs Attorney General HCCS 105 of 2003; Kainamura Patrick vs Attorney General HCCS 688 of 2001).

I now turn to Issue II; Whether the Respondent (Attorney General) is liable?

In Mugwanya Patrick vs Attorney General HCCS 154 of 2009 it was held that an employer is in general liable for the acts of his employees or agents while the course of the employers business or within the scope of employment. This is referred to as vicarious liability. In proving vicarious liability the questions to be determined are:

- i. Whether or not the employee or agent was acting within the scope of his authority *Muwonge vs Attorney General of Uganda [1967] E. A 17*, or; - ii. Whether or not the employee was going about the business of his employer at the time the damage was done to the Plaintiff Patel & Anor vs Tandree and Anor [1936] K. L. R 8.

After considering Semambo Ssesanga Ronald's evidence and having held issue 1 in the affirmative, I have no doubt that the Complainant was arrested on reasonable suspicion by a recognized officer empowered by the Police Act on reasonable suspicion of having committed murder. I have no hesitation in concluding that all this was done by the agents of the Defendant in course of their employment. I therefore find that the Attorney General is vicariously liable for the acts and omissions of its servants.

In regards to the last Issue; whether there is any remedy available to the Complainant,

Once the litigant has alleged an arrest that cannot be justified by the arrestor the inquiry shifts to the determination of an appropriate quantum of damages to be awarded. The Universal Declaration of Human Rights 1948 under Article 8 states that any person who claims that a fundamental right or freedom has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation. Under Article 53 (2) (b) and (c) of the Constitution the UHRC may, if satisfied that there has been an infringement of a human right or freedom, order payment of compensation or any other legal remedy or redress. Commissioner F. Mariam Wangadya in the matter of Nsereko and Attorney General UHRC /112/1999 held that human rights would have no meaning if there was no redress for victims of human rights violations.

Having resolved issues 1 and 2 in the affirmative, I find that Semambo Ssesanga Ronald (who sadly passed on before the conclusion of this complaint) is entitled to compensation.

Accordingly, the only question left is on determining what quantum of damages he is entitled to. In his testimony, Semambo Ssesanga Ronald prayed for UGX 50 million as compensation for unlawful detention for one month. It has been established that Semambo Ssesanga Ronald had been in illegal detention for 29 days before his release. In considering the quantum of damages I will take into consideration the period of detention (Egesa Nour and Attorney General UHRC/280/2004) and previous similar cases. In Olal Bosco and Attorney General UHRC/GLU/14/2004, a decision read in 2013 the Complainant was illegally detained for 27 days, Commissioner Fauzat Mariam Wangadaya awarded UGX 7,000,000/= (Seven million Uganda shillings) as compensation to the complainant for violation of his right to personal liberty. In **Matiya Byabalema and Others Vs Uganda Transport** Company SCCA 10/93 it was held that Courts ought to access the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present.

In the instant case the Complainant was detained for 29 days before he was released. Guided by the above mentioned authorities and taking to account the value of the shillings. I deem a figure of UGX 9,300,000/= (Uganda Shillings nine million three hundred thousand) adequate compensation to the Estate of the Late Semambo Ssesanga Ronald for the violation of his right to personal liberty.

## **ORDERS**

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the Estate of the Late Semambo Ssesanga Ronald a sum of UGX 9,300,000/= (Uganda Shillings nine **million three hundred thousand)** only as general damages for the violation of the Late Semambo Ssesanga Ronald's right to personal liberty. - 3. The total sum shall carry interest at 10 % 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.

Dated at KAMPALA this $26$ day of $12$ $2018$ .

m. Lilin

**MEDDIE B. MULUMBA** PRESIDING COMMISSIONER