Wakilii

Luyenjje Najjimu and Others v Uganda (Criminal Applications No. 10, 12 & 13 of 2023)

High Court · [2024] UGHCICD 18 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Applications for enforcement of human rights arising from criminal proceedings for terrorism and belonging to a terrorist organisation
Decision
Application dismissed on grounds of improper party sued, defective affidavits, and failure to prove torture allegations

Observed later treatment

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Holding

The court dismissed the application for enforcement of human rights on three independent grounds: first, the applicants sued 'Uganda' instead of the Attorney General, rendering the application improper; second, the applicants failed to properly affirm their affidavits before a commissioner for oaths as required by the Oaths Act; and third, even assuming procedural compliance, the applicants failed to discharge the burden of proving torture on a balance of probabilities through cogent evidence beyond their identical affidavits.

Outcome

Application dismissed on grounds of improper party sued, defective affidavits, and failure to prove torture allegations

Facts

Three applicants (Luyenjje Najjimu, Katumba Abdu Rashid, and Kiyemba Arafat) facing terrorism-related charges filed applications for enforcement of human rights, alleging they were arrested in August 2021, detained at UPDF Chief of Military Intelligence for two months in total darkness, subjected to beatings and torture, and forced to sign charge and caution statements. The applicants sought declarations that the statements were obtained through torture, nullification of the criminal proceedings, their unconditional release, and damages of UGX 150,000,000 each. The respondent opposed the application, denying torture and challenging the validity of the applicants' affidavits. The respondent presented evidence that the commissioner for oaths who allegedly affirmed the applicants' affidavits never registered at either the prison or court premises on the relevant dates.

Issues

  1. Whether the application is properly before the court (whether the correct party was sued)
  2. Whether the applicants' affidavits in support of the motion are incurably defective
  3. What is the import of Section 6(5) of the Human Rights (Enforcement) Act, 2019 on procedural defects
  4. Whether the applicants' right to freedom from torture, cruel, inhuman and degrading treatment was violated
  5. What remedies are available to the applicants

Orders

  • Application dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Parties — Vicarious Liability of Government — Proper Party in Civil Proceedings
Civil proceedings by or against the Government of Uganda must be instituted by or against the Attorney General, not against 'Uganda' as an entity. The state is vicariously liable for actions of public officers, including UPDF officials, who violate human rights in the course of their employment, and such liability must be enforced through suit against the Attorney General as the proper party.
Parties — Non-Existent Party — Effect of Suing Wrong Party
A suit against a non-existent party is bad in law and ought to be rejected by the court. Such a defect cannot be cured by amendment through substitution of parties, as this would constitute bringing an entirely new suit rather than correcting a procedural irregularity.
Affidavit Evidence — Requirements for Valid Affirmation — Oaths Act
For an affidavit to be valid, a deponent who chooses to affirm rather than swear must repeat the specific words prescribed by Section 8 of the Oaths Act: 'I solemnly, sincerely and truthfully affirm that this is my name and handwriting and that the facts deposed by me in this affidavit are the truth, the whole truth and nothing but the truth.' An affidavit where the deponent merely confirmed understanding of the contents and signed, without repeating the prescribed affirmation, is a plain statement that is incurably defective.
Public Documents — Proof by Certified Copies — Evidence Act
Public documents such as court and prison registration books must be proved by certified copies as provided under Sections 75 and 76 of the Evidence Act. An uncertified photocopy of a public document, lacking the certificate of a public officer with custody of the document, is inadmissible to prove the contents of that document.
Human Rights Enforcement — Section 6(5) HREA — Substance versus Technicality
Section 6(5) of the Human Rights (Enforcement) Act, 2019, which prohibits dismissal of suits for failure to comply with procedure, form or technicality, does not apply to substantive defects such as suing a non-existent party or failure to properly swear an affidavit. Suing the correct party is essential for fair hearing and enforcement of judgments, and proper swearing of affidavits is fundamental to the nature of affidavit evidence, not mere technicalities.
Burden of Proof in Torture Allegations — Standard of Proof
In applications for enforcement of human rights alleging torture, the burden of proof lies on the applicant to establish the violation on a balance of probabilities. The principle in Charles Onyango Obbo that the burden shifts to the state to justify derogations from rights applies only where the state seeks to limit rights under Article 43 of the Constitution, not where an applicant alleges past violation of rights by state agents.
Torture — Proof of Allegations — Sufficiency of Evidence
While medical evidence is not strictly required to prove torture, and allegations may be proved by affidavit evidence given the clandestine nature of torture, applicants must adduce cogent evidence beyond mere sworn statements to discharge the burden of proof on a balance of probabilities. Where multiple applicants submit identical affidavits narrated word-for-word, and the respondent specifically denies the allegations, such affidavits alone are insufficient to establish torture without corroborating evidence.

Legislation cited (56)

Cases cited (22)

  • Dr. Kizza Besigye and Others v Attorney General (Constitutional Petition No. 7 of 2007)
  • Oloka Onyango and Others v Attorney General (Constitutional Petition No. 8 of 2014)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Election Petition No. 11 of 2007)
  • Jayanth Amratlal and Another v Prime Finance Co Ltd (Miscellaneous Application No. 225 of 2008)
  • Tuwamoi v. Uganda (1967) EA 84
  • Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Attorney General v Sam Semanda (Civil Appeal No. 8 of 2006)
  • George Kiggundu v Attorney General (Civil Suit No. 386 of 2014)
  • Muwonge v. Attorney General of Uganda [1967] EA 17
  • Mulangira Ssimbwa v The Board of Trustees of Miracle Centre and Another (Miscellaneous Application No. 576 of 2005)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Kakooza John Baptist v Electoral Commission and Another (Supreme Court Constitutional Appeal No. 1 of 2008)
  • Inspectorate of Government and Another v Blessed Constructors Ltd (Civil Appeal No. 21 of 2009)
  • Otim Nape George William v Ebil Fred and Another (Election Petition No. 17 of 2011)
  • Asiimwe and Another v Attorney General and 2 Others (Miscellaneous Application No. 7 of 2022)
  • Olanya James v Ociti Tom and 3 Others (Civil Appeal No. 64 of 2017)
  • Richard Evans and Co. Ltd v. Astley, [1911] A.C. 674 at 687
  • Bradshaw v. McEwans Pty Ltd, (1959) 101 C.L.R. 298 at 305
  • Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1997)
  • Paul Wanyoto Mugoya v Sgt Oumo Joshua and Attorney General (Civil Appeal No. 91 of 2021)
  • Robert Asiimwe Akanga and Kalenga Steven v Attorney General, Director of Public Prosecutions and Uganda Revenue Authority (Miscellaneous Applications No. 7 and 8 of 2022)
  • Massa v. Achen [1978] HCB 297

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Luyenjje Najjimu and Others v Uganda (Criminal Applications No. 10, 12 & 13 of 2023) [2024] UGHCICD 18 (23 April 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.