Wakilii

Mukiibi & 20 Others v Kiyimba & 3 Others (Miscellaneous Cause 179 of 2020)

High Court · [2024] UGHCCD 200 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Human rights enforcement application following arrest during Covid-19 pandemic and alleged torture in custody
Decision
Declarations granted in favour of applicants against 1st and 3rd respondents; general and exemplary damages awarded with interest; costs to applicants

Observed later treatment

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Holding

Held that the 1st respondent (a local council chairperson) and 3rd respondent (Kyengera Town Council) violated the applicants' constitutional rights to freedom from torture and to privacy during a Covid-19 enforcement operation in which the applicants were beaten, tied up, paraded publicly, and rebuked as homosexuals, all without lawful authority or search warrant. Video evidence and medical reports corroborated the torture. The court found insufficient evidence of discrimination on a prohibited ground. General damages of UGX 5,000,000 and exemplary damages of UGX 2,500,000 awarded to each applicant against the 1st and 3rd respondents jointly. Personal liability of state actors for human rights violations under the Human Rights (Enforcement) Act does not absolve the principal of vicarious liability.

Outcome

Declarations granted in favour of applicants against 1st and 3rd respondents; general and exemplary damages awarded with interest; costs to applicants

Facts

On 29 March 2020, during the Covid-19 lockdown, the 1st to 20th applicants were arrested at their residence in Kyengera Town Council by a group led by the 1st respondent (Chairperson LC III), along with LDU and police personnel. The applicants allege they were beaten with sticks, tied with ropes, paraded publicly, and verbally abused on suspicion of being homosexuals. Video evidence showed the 1st respondent beating some applicants. They were charged with doing a negligent act likely to spread infectious disease, remanded to Kitalya Mini-Max Prison, and later released when charges were withdrawn. The 21st applicant (HRAPF) provided legal representation. Medical reports documented injuries consistent with assault. The applicants filed this human rights enforcement application alleging violations of their rights to freedom from torture, privacy, and non-discrimination. The respondents denied the allegations and argued that the arrest was lawful enforcement of Covid-19 regulations.

Issues

  1. Whether the respondents' actions violated the applicants' right to freedom from torture, cruel, inhuman, and degrading treatment or punishment guaranteed under articles 24 and 44(a) of the Constitution.
  2. Whether the respondents' actions violated the applicants' right to privacy guaranteed under article 27(1) and (2) of the Constitution.
  3. Whether the respondents' actions violated the applicants' right to equality and non-discrimination guaranteed under articles 20(1) and (2) and 21(1) of the Constitution.
  4. What remedies are available to the parties.

Orders

  • Application partly allowed.
  • Declaration that the 1st and 3rd respondents violated the 1st to 20th applicants' right to freedom from torture, cruel, inhuman, and degrading treatment contrary to articles 24 and 44(a) of the Constitution.
  • Declaration that the 1st and 3rd respondents violated the 1st to 20th applicants' right to privacy contrary to article 27(1) and (2) of the Constitution.
  • Declaration that the 1st and 3rd respondents are personally and vicariously liable for the violations.
  • General damages of UGX 5,000,000 awarded to each of the 1st to 20th applicants, payable equally by the 1st and 3rd respondents.
  • Exemplary damages of UGX 2,500,000 awarded to each of the 1st to 20th applicants, payable equally by the 1st and 3rd respondents.
  • All damages to attract commercial rate of interest from date of ruling until payment in full.
  • Costs awarded against the 1st and 3rd respondents.

Rules and key headnotes

Constitutional Law — Human Rights Enforcement — Personal Liability of State Actors
Under section 10 of the Human Rights (Enforcement) Act, liability for infringement of rights and freedoms may be personal in nature, but such personal liability does not absolve the principal (such as a local government authority) of vicarious liability for wrongs committed by its agents acting within the scope of their duties.
Constitutional Law — Torture — Standard of Proof and Evidence
While torture is absolutely prohibited and cannot be justified under any circumstances, courts must apply a strict test when considering whether a breach of the right to freedom from torture has occurred, taking into account factors such as duration of treatment, physical and mental effects, and the age, sex, health, and vulnerability of the victim. A higher threshold of evidence than usual is required for its occurrence to be established as fact.
Evidence — Video Evidence — Admissibility — Electronic Transactions Act 2011
Electronic data evidence, including video recordings, is admissible under section 8 of the Electronic Transactions Act 2011 provided three essential elements are satisfied: the manner in which the data message was generated, stored or communicated; the reliability of the manner in which authenticity was maintained; and the manner in which the originator was identified. A party need not obtain evidence in its original format, and video evidence is admissible if it has the same chronological narration as witness statements and is intelligible.
Constitutional Law — Right to Privacy — Unlawful Entry and Search
The right to privacy under article 27(2) of the Constitution protects an individual's space from unlawful searches and unauthorised entry into private premises. Protection is strongest in the intimate private sphere, and any interference with privacy in that sphere attracts a higher level of scrutiny. The power of police to search premises under section 27 of the Police Act requires reasonable grounds and proper authority; local government officials have no independent power to raid private residences without legal authority or search warrant.
Constitutional Law — Non-Discrimination — Burden of Proof
A party alleging discrimination bears the initial burden to demonstrate that discrimination occurred, upon which the burden shifts to the respondent to produce evidence showing no breach occurred or that any differential treatment was legitimate and justified. A complainant must prove that mistreatment was differential and specific to them on the basis of characteristics unique to them.
Constitutional Law — Damages — General and Exemplary Damages in Human Rights Cases
General damages in human rights cases are restitutive in nature, intended to return the injured person to the position before the wrong, and courts must consider the value of the subject matter, economic inconvenience suffered, and extent of breach. Exemplary or punitive damages are awarded where infringement was oppressive, arbitrary, or unconstitutional, and must be sufficient not only to compensate but also to deter repetition of similar violations.
Evidence — Medical Reports — Admissibility as Secondary Evidence
While the general rule requires primary evidence, photostat copies of medical reports and treatment notes may be admitted as secondary evidence under the exceptions in section 64 of the Evidence Act where unique circumstances (such as detention and disempowerment of victims) explain why original documents could not be produced, and where there is proof of the accuracy of the copies.

Legislation cited (39)

Cases cited (37)

  • Wazembe v Attorney General (High Court Civil Suit No. 154 of 2016)
  • Lukwago and 4 Others v Aiso and 3 Others (High Court Civil Suit No. 226 of 2015)
  • Mukasa and Another v Attorney General (High Court Miscellaneous Cause No. 247 of 2006)
  • Nabagesera and Another v Rollingstone Limited and Another (High Court Miscellaneous Cause No. 163 of 2010)
  • Izama v Attorney General (Constitutional Appeal No. 1 of 2016)
  • Oketha v Attorney General (High Court Civil Suit No. 69 of 2004)
  • Stanbic Bank Uganda Limited and Another v Commissioner General of Uganda Revenue Authority (Miscellaneous Application No. 004 of 2010)
  • Jennifer Muthoni & 10 Ors V AG of Kenya [2012] eKLR
  • Okili v Akello and Electoral Commission (High Court Election Petition No. 0001 of 2014)
  • Besigye v Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Kanyomozi v Motor Mart (U) Ltd (Supreme Court Civil Application No. 6 of 1999)
  • Twinamasiko v Agaba and Another (High Court Election Petition No. 702 of 2021)
  • Junaco (T) Limited and 2 Others v DFCU Bank Limited (Miscellaneous Application 27 of 2023) 2022 UGCommC 100 (29 March 2022)
  • Kigoye v Uganda (Criminal Appeal No. 31 of 2019)
  • Lalwak v Opio (Civil Appeal No. 078 of 2018)
  • Bwambale and Others v Uganda (Criminal Appeal No. 248 of 2019)
  • R v Daye 1908 KB 330
  • Seccombe v Attorney-General 1919 TPD 270
  • Charles Onyango Obbo and Anor v Attorney General
  • Kyamanywa v Uganda (Constitutional Reference No. 10 of 2000)
  • Nakaziba v Attorney General (Miscellaneous Cause No. 295 of 2018)
  • Sikuku v Uganda Baati (High Court Civil Suit No. 298 of 2012)
  • Kasha Jacqueline and Others v Rolling Stone Ltd and Another (Miscellaneous Cause No. 163 of 2010)
  • Hon. Fox Odoi & 21 Others v Attorney General & 3 Others (Consolidated Constitutional Petition 14 of 2023; Consolidated Constitutional Petition 15 of 2023; Consolidated Constitutional Petition 16 of 2023; Consolidated Constitutional Petition 85 of 2023) [2024] UGCC 10 (3 April 2024)
  • Odoi-Oywelowo and Others v Attorney General and Others (Constitutional Appeal No. 07 of 2024)
  • Turyatemba and 4 Others v Attorney General and Another (Constitutional Petition No. 15 of 2006)
  • Abdulaziz, Cabales and Balkandali v. The United Kingdom (Application Nos. 9214/80; 9473/81; 9474/81)
  • Nsereko v Attorney General and Others (Miscellaneous Cause No. 386 of 2020)
  • Zaake v Attorney General and Others (Miscellaneous Cause No. 85 of 2020)
  • Okumu and Others v Attorney General (Miscellaneous Application No. 63 of 2002)
  • Kamugira v National Housing & Construction Company (Civil Suit No. 127 of 2008)
  • Uganda Telcom v Tanzanite Corporation [2005]
  • Wilson v Attorney General (High Court Civil Suit No. 0027 of 2010)
  • Cuosesens v Attorney General (Supreme Court Civil Appeal No. 8 of 1999)
  • Muwonge v Attorney General (1967) EA 7
  • Bernstein and Ors v Bester NO and Ors 1996(4) CLR 44
  • Massa v Achen [1978] HCB 279

Full judgment

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Mukiibi & 20 Others v Kiyimba & 3 Others (Miscellaneous Cause 179 of 2020) [2024] UGHCCD 200 (22 November 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.