Wakilii

Musisi Jimmy v Attorney General [2019] UGHRC 50

Tribunal · 2019 Complaint Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Human rights complaint before the Uganda Human Rights Commission Tribunal alleging violations of personal liberty, freedom from torture, and property rights by state agents
Decision
Complaint allowed with compensation awarded to complainant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the complainant's rights to personal liberty, freedom from torture and cruel, inhuman or degrading treatment, and property were violated by police officers acting as state agents. The complainant was unlawfully detained for six days beyond the constitutional 48-hour limit, subjected to limited torture and cruel treatment including being tied to a pole, slapped, denied food and water for six days, and detained in a dusty cell without toilet facilities. His fishing equipment was unlawfully confiscated and not fully returned despite instructions from the Director of Public Prosecutions. The Attorney General was held vicariously liable and ordered to pay UGX 25,000,000 in compensation.

Outcome

Complaint allowed with compensation awarded to complainant

Facts

On 23 April 2005, Musisi Jimmy, a fisherman, was arrested at Miana Landing Site in Kalangala District by two police officers (Nuwamanya and Kato) on allegations of stealing fishing nets. He was taken to Nakitaba Landing Site where his hands were tied with ropes and he was tied to a pole. One Iga slapped him causing injury to his ear. He was detained at Kyagalanyi Police Post in a dusty cell without toilet facilities and denied food and water for six days. He developed diarrhea with blood and suffered various injuries including wounds on his left lower limb, bruises on his back, and swollen ear and arm. On the eighth day he was transferred to Kalangala Police Station and released on police bond on 30 April 2005 without being taken to court. His fishing equipment including a boat, 135 fishing nets, engine, and other materials were confiscated. Only 53 nets and the engine were eventually returned despite instructions from the Director of Public Prosecutions to return all property. The charges against him were dropped for lack of evidence.

Issues

  1. Whether the complainant's right to personal liberty was violated by state agents.
  2. Whether the complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by state agents.
  3. Whether the complainant's right to property was violated by state agents.
  4. Whether the respondent is liable for the violations.
  5. Whether the complainant is entitled to any remedies.

Orders

  • Complaint allowed.
  • Attorney General ordered to pay complainant UGX 25,000,000 in total compensation broken down as: UGX 10,250,000 for violation of freedom from torture or cruel, inhuman or degrading treatment; UGX 2,400,000 for violation of personal liberty; UGX 12,350,000 for violation of right to property.
  • Interest at 10% per annum on the total sum from date of decision until payment in full.
  • Each party to bear own costs.
  • Right of appeal to High Court within 30 days from date of decision.

Rules and key headnotes

Freedom from Torture — Definition and Elements — CAT Article 1
Torture requires four elements: (a) the act inflicts severe suffering or pain on the victim, whether physical or mental; (b) the act is intentionally inflicted irrespective of whether it is direct or indirect; (c) the act is carried out for purposes such as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination; and (d) the act is carried out by or with the instigation or consent or acquiescence of a public official or any other person acting in official capacity.
Freedom from Torture — Distinction from Inhuman and Degrading Treatment
Torture requires deliberate inhuman treatment causing very serious and cruel suffering, whereas inhuman treatment or punishment involves the infliction of intense physical and mental suffering which reaches a minimum level of severity, and degrading treatment requires ill-treatment designed to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.
Police Detention — Burden of Proof — Injuries in Custody
Where an individual is taken into police custody in good health but is found to be injured on release, it is incumbent on the police authority to provide a plausible explanation as to the cause of the injuries, failure of which a clear issue arises that the injuries were inflicted while in police custody.
Personal Liberty — Constitutional Protection — 48-Hour Rule
A person arrested or detained for the purpose of bringing him or her before a court in execution of an order of court or upon reasonable suspicion of having committed or being about to commit a criminal offence shall, if not earlier released, be brought to court as soon as possible but in any case not later than 48 hours from the time of arrest, and detention beyond this period without being brought to court violates the constitutional right to personal liberty.
Personal Liberty — Burden of Proof — Lawfulness of Detention
Once a complainant proves the fact of arrest and detention, the burden shifts to the respondent to prove that the arrest and detention were justified under law, and failure to adduce such evidence establishes a violation of the right to personal liberty.
Property Rights — Police Exhibits — Unlawful Disposal
Police officers who confiscate property as exhibits in a criminal investigation are required to retain such property until the case is fully determined, and the giving away of such property to another person before determination of the case, especially where charges are subsequently dropped for lack of evidence, constitutes a violation of the owner's constitutional right to property.
Vicarious Liability — State Responsibility for Acts of Police Officers
An act is done by a servant in the course of employment not only when the servant is actually doing the work which he is employed to do, but also when the act done is an incident in performing something he is employed to do, and therefore the State bears vicarious liability for violations of human rights committed by police officers acting in their official capacity.

Legislation cited (24)

Cases cited (15)

  • Fred Tumuramye v Gerald Bwete and 10 Others (UHRC Complaint No. 264 of 1999)
  • Ireland v United Kingdom (1978) 2 EHRR 25
  • Aksoy v Turkey (1996) ECHR 68
  • Edeku v Attorney General (1995) XI KALR 24
  • Winterwerp v The Netherlands (1979-80) 2 HRR 387
  • Makomberedze v Minister of State (Security) [1987] LRC (Const) 504
  • Bird v Jones (1845) 115 ER 668
  • Sekaddu v Sebaduka (1968) EA 213
  • Canali v France (2013) ECHR 25
  • Peers v Greece (2001) ECHR 19
  • James Rwanyarare, Patrick Muhumuza & Charles Magezi v Attorney General (UHRC Complaint No. 304 of 1999)
  • Railways Corporation v Obwoya [1974] EA 276
  • Matiya Byalema and Others v Uganda Transport Company (SSCA No. 10 of 1993)
  • Agaba Bernard v Attorney General (UHRR 2008-2011)
  • Abdul Maka v Jinja District Council (HCCS No. 60 of 2000)

Full judgment

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

Musisi Jimmy v Attorney General 2019 UGHRC 50 (18 September 2019)
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.