Sankala v Attorney General (Complaint No: FPT/43/2013) [2022] UGHRC 18 (20 January 2022)


THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT FORT PORTAL COMPLAINT NO: FPT/43/2013

SANKALA JOHN::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

AND

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

DECISION

BEFORE; HON. COMMISSIONER SHIFRAH LUKWAGO

Sankala John lodged a complaint with the Commission alleging that on 14th December 2012, he was sent to Busengerwa in Bundibugyo district and that as he was entering the gate of Bundi Kayanja company he was informed that his colleague Edmond Saturday had been shot dead. He further stated that the relatives of the deceased wanted to lynch him. That on 15th December 2012 his boss took him to Bundibugyo police station where he was detained and charged with murder for 18 days. That the culprits and the person who shot the deceased were arrested and he was released on police bond.

ISSUES

The Tribunal was to decide on the following issues of Contention:

- 1. Whether the Complainant's right to personal liberty was violated by the Respondent's agents. - 2. Whether the Complainant is entitled to compensation.

In resolving these issues, the burden of proof lies with the person asserting that his or her rights have been violated, who in this case is the Complainant. This is

in line with Section 101 (1) of the Evidence Act, Cap 6 Laws of Uganda, which provides that;

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

Section. 102 of the Evidence Act further provides that;

"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."

Issue one

Whether the Complainant's right to personal liberty was violated by the Respondent's agents.

The right to personal liberty is protected by human rights law at the National, Regional and International levels.

The Universal Declaration on Human Rights Article 3 provides that everyone has the right to Liberty and security of person.

The International Covenant on Civil and Political Rights (1966) under Article 9(1) provides that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.

Furthermore, 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

The African Charter on Human and People's Rights provides under Article 6 that every individual shall have the right to liberty and to the security of person . No one may be deprived of his freedom except for reasons and conditions previously laid down by the law. Article 23 ofthe Constitution ofthe Republic Uganda 1995 provides for the protection of personal liberty.

Article 23 (1), in particular, caters for circumstances under which a person can be deprived ofthe right to personal liberty. Article 23 (1) (c)specifically provides that a person's right to personal liberty can be deprived for purpose of bringing that person before a court in execution of the order of a court orupon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

In MakomberedzeVs. Minister of State (security) [1987] LRC (Const) 504, per Ebrahim. J. The right of the individual to liberty was described by the High Court of Zimbabwe as one of the pillars of freedom in a democratic society

Furthermore, Article 23(4) (a) and (b) of the Constitution are to the effect 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 on released be brought to court as soon as possible but in any case not later than 48 hours from the time of his arrest. This same legal requirement is explicitly stated under Section 25 of the Police Act Cap 303.

In WintwerpVs The Netherlands (1979 -80) 2 HRR 387 it was stated that no one may be deprived of his or her liberty save in a limited number of circumstances which must be in accordance with a procedure prescribed by law.

In his statement the complainant Sankala John (CW1) stated that on 14th December 2012, he was sent to Busengerwa in Bundibugyo district and that as he was entering the gate of Bundi Kayanja Company he was informed that his colleague Edmond Saturday had been shot dead. He further stated that the relatives of the deceased wanted to lynch him. That on 15th December 2012 his boss took him to Bundibugyo police station where he was detained and charged with murder for 18 days. That the culprits and the person who shot the deceased were arrested and he was released on police bond.

The lock up register from Bundibugyo Police Station, dated 15th December 2012 was admitted in evidence as the complainant's evidence and marked as *exhibit 1.*

During cross examination the Complainant Sankala John, stated that he was charged with murder and robbery, he also admitted that these are cases that can lead to mob justice and that the relatives of the deceased wanted to kill him.

The respondent's counsel during cross examination brought out the fact that the complainant was detained for protection from mob justice.

From the evidence adduced before tribunal. It is my finding that the Complainant was arrested on 15th December 2012 on charges of murder, vide CRB 1715/12 and detained at Bundibugyo Police Station. He was released on bond on 2nd January 2013. Consequently by virtue of the provisions of Article 23(4) (b) of the Constitution, Sankala John's detention was excessive and unlawful therefore violating his right to personal liberty.

Having determined that the respondent's agents violated the complainant's right, ^I will now turn to determine the duration for which the complainant was illegally detained. The evidence that was adduced before the tribunal indicates that the complainant was in illegal detention from 15th December, 2012 to 2nd January 2013. The actual period of illegal detention is arrived at by subtracting from the eighteen (18) days the forty eight hours or the equivalent of two days of pre-trial detention allowed by the Constitution. This leaves sixteen (16) days of illegal detention.

According to the lockup register, the complainant was charged with murder which is an offence for which one can be arrested, this therefore means that the police in arresting the complainant at all material time were in the course of their duties.

Under Section. 21(1) (i) of the Police Act cap. 303, a police officer shall in the performance of the functions of his or her office apprehend all persons whom he or she is legally authorized to apprehend. Further, under Section. 23 (1) of the Police Act, a police officer may without a court order and without a warrant, arrest a person if he has reasonable cause to suspect that the person has committed or is about to commit a criminal offence.

From the above provisions, the police men on arresting and detaining the complainant they were acting in the course of their duty.

According to Article 119 of the Constitution of Uganda 1995, the functions of the Attorney General among others is to represent the Government in courts or any other legal proceedings to which the government is a party. Accordingly, the Respondent is vicariously liable for those actions.

Wherefore according to the above provisions, ^I find on the balance of probability and hold that the Respondent's agents violated the complainant's right to personal liberty and hence the Respondent is vicariously liable for the violation.

Issue two

Having held Issue ^I in the affirmative, I find that the Complainant is entitled to a remedy. See: Article 53 (2) (b) and (c) of the Constitution of the Republic of Uganda 1995.

Accordingly, the only question left is on determining what quantum of damages he is entitled to.

In determining the remedy, ^I will take into account the period of time that the Complainant spent in detention. The Complainant was in detention for 16 days beyond the 48 hours envisaged under Article 23 (4) (b) of the Constitution before he was released on bond. ^I will further take into consideration the circumstances of this case as a whole.

In Bakaliraku Vincent & Anor. -And- Attorney General Complaint No. UHRC 316/2004, it was held that it is the practice of this tribunal, referring to precedents of High Court, to award complainants U. Shs2,000,000= (Two Million Shillings) for illegal detention of every seven (7) days.

The Complainant was arrested on allegations of murder on 15th December 2012 and was released on 2nd January 2013.

^I will also take note of the fact that during the hearing of 21st October 2019 on cross examination, the Complainant stated that, the relatives of the deceased wanted to kill him. ^I find that this statement mitigates the award. However much the complainant's right to personal liberty was violated for keeping him in illegal detention beyond the statutory 48hours, he was kept under protective custody to also save him from being lynched by the relatives of the deceased person. However, the police had a duty to produce him before within the required time.

I therefore deem a figure of UGX 3,000,000/= (Uganda Shillings three million) as general damages for the violation of his right to personal liberty as protected under Article 23 (4) (b) of the Constitution of the Republic of Uganda.

ORDERS

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the Complainant Sankala John a sum of UGX 3,000,000/= (Uganda Shillings three million) as general damages for the violation of his right to personal liberty as protected under Article 23 (4) (b) of the Constitution of the Republic of Uganda.

3. 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.

\* ' ^V

Dated at Fort Portal this ............. day of 2022.

PRESIDING COMMISSIONER