Two recent decisions from the civil division of Uganda’s high court provide an interesting contrast. International media have picked up on one of them, in which a man was arrested by police, “violently beaten” by them and then taken to the cells where he was found dead next morning. The other, given virtually no publicity, concerns a man who was unlawfully held for four days in detention and then spent the next four years, on bond, forced to report regularly to police, before his bond was cancelled and the whole issue collapsed. Which case do you think won the higher damages award by the court?
Read the Bikyahaga judgment
Read the Bwogi judgment
Decisions by Judge Musa Ssekaana of Uganda’s high court civil division are always worth close attention. Earlier this year, for example, he delivered a landmark judgment on unlawful evictions being a violation of the right to life, dignity and property. As part of that decision he made an order compelling the government to develop comprehensive guidelines governing land evictions, with a seven-month deadline for reporting back to the court on progress that had been made.
Against this exemplary background, I was puzzled by two of his most recent judgments.
Reports about one have been widely published internationally. This was a case in which a man was dragged out of a “film house” by police, beaten up and then thrown into a police cell, obviously badly injured. He was found dead next morning.
Two days later a top police officer issued a statement referred to by the court as a “condolence message” which read, in part, “The management of the Uganda Police Force was disturbed by the fact that preliminary investigations show the death occurred at the hands of three policemen who had gone to effect an arrest of the late (Ronald Bikyahaga).”
This, said the judge, was “uncontroverted evidence” that Bikyahaga’s death was at the hands of the police. Though the police disputed liability, arguing that those responsible for Bikyahaga’s death were not acting in an official capacity, the court found the police liable saying “the police officers deliberately and illegally tortured the deceased which is unconstitutional”.
He added that Uganda’s constitution guarantees and protects “the life of every citizen ... as well as the right against torture, degrading and inhumane treatment. The errant police officers violated the non-derogable rights of the deceased against torture and his right to life which accordingly calls for compensation.”
Bikyahaga’s mother, Joyce Bikyahaga Namata, who had brought the claim, asked for “general damages, special damages, interest and costs”.
Judge Ssekaana, having found the police liable, duly ordered the Attorney General (on behalf of the government) to pay her compensation for the “arbitrary and unlawful deprivation of the right to life of (her) son.” The compensation he awarded for the unlawful deprivation of the life of her son, was UGX 25.000.000 at 12 % interest from the date of judgment. The judge did not specify whether this award was for general damages or special damages, but also gave costs against the police as Namata had requested.
The second case, judgment in which was delivered on the same day as the Bikyahaga matter, concerns Kastor Bwogi, the Orient Bank (Uganda) and the Attorney General.
In June 2012 Bwogi was interrogated at the bank about an alleged theft of UGX 350.000.000. Then he was taken to the police station where he was “coerced to make a statement”. He was imprisoned for four days in the police cells – unlawfully, as he should have been taken to court after two days – and later released on police bond. In terms of that bond, he had to report regularly to the police while investigations continued. For the next four years and more he kept reporting until the police eventually cancelled the bond. During all those years, and since, nothing more was heard about the bank theft.
The judge found Bwogi had been unlawfully detained and his rights violated. The constitution says that anyone who has been arrested must be brought to a court of law within 48 hours, and yet he was held for an extra two days of wrongful imprisonment by the police for which he was entitled to compensation. The court also accepted that he was forced to continue reporting to police for more than four years.
Judge Ssekaana awarded Bwogi UGX 25.000.000 for general damages in relation to the arrest and illegal detention as well as for being made to report to the police for four years “without being discharged of any wrong doing”.
In addition, Bwogi had asked for “punitive or exemplary damages” for false imprisonment and detention. Damages under these headings are awarded “to punish the defendant for the wrong done” and to act as a deterrent. Saying that any constitutional violation by the police who are supposed to uphold and protect the constitution, “must attract a punitive sanction”, the judge gave Bwogi an additional UGX 10.000.000
As with the Bikyahaga case, he also ordered the government to pay interest of 12 % from the date of judgment, plus costs.
As I read the Bikyahaga decision I noticed that the case, originally filed in 2008, and concerning an unlawful death in 2007, was only now being heard and finalized, well over 10 years later. It has nothing to do with the presiding judge, of course, but such systemic delays in the justice system should be a matter of serious concern.
I also found it significant that the court had no words for the police, other than quoting the constitution. Where was the hope expressed that those responsible would be prosecuted? Or condemnation for those who should uphold the law, instead taking the law into their own hands? Surely, in cases like this, no judges of Uganda's Court of Appeal or the Supreme Court could take exception to such remarks from the High Court. Their absence, however, adds to the view that the courts are removed from the experience of ordinary people, and that they care very little.
For interest, I also noted that the Bwogi decision involved some 2333 words, while judgment on compensation for the gruesome killing of Bikyahaga took just 1114 words to conclude – about the length of this article.
And then there is the question of the damages awarded. No question that Bwogi had a rough deal and that it was inexcusable for the police to subject him to four years of bond reporting – all for nothing. But does that explain why the police will have to pay damages of UGX 25.000.000 for effectively murdering a detainee, and UGX 35.000.000 to someone who, however poorly he was treated, at least did not lose his life?