What must surely be one of the most significant laws passed by the present administration in Uganda is being used for the first time in a pending court case – and the police officers involved in the case must be worried about the outcome as well as its possible impact on their pockets. That’s because they could be held liable if they are found to have infringed the new law by violating the human rights of the applicants. They could also be ordered to pay part of any damages that might be awarded, and might also be dismissed.
The new law, Uganda's Human Rights (Enforcement) Act of 2019, is aimed at ensuring that the human rights listed in the constitution, are respected and that there are consequences when they are not.
It solves the question of standing in any human rights challenge up front: one of its very first provisions is that court action may be instituted by someone acting on behalf of someone else who cannot act in their own name, by someone acting as a member of, or in the interest of a group or class, by someone acting in the public interest, or by an association acting in the interest of one or more of its own members.
Another of the key clauses, at least from my point of view, is that no suit brought under the new law ‘shall be rejected or otherwise dismissed by the competent court merely for failure to comply with any procedure, form or any technicality.’ Every week I read decisions from around the continent in which courts wrestle with the problem of what to do where, however significant the issue or egregious the injury, some technicality has been overlooked. At least in human rights issues, the Ugandan courts may now cross that off the list of problem matters to decide.
If a court decides that a fundamental right or freedom has been violated or unlawfully denied or that it should be enforced, the court ‘shall issue orders it considers appropriate, including an order for compensation.’
This may include rehabilitation of the person ‘including medical and psychological care’ if this is suitable, a public apology including acknowledgement of the facts and acceptance of responsibility, as well as criminal and other sanctions against those responsible for the violations. Restitution, compensation or payment ordered by the court shall be a ‘civil debt owed to the victim of a human rights violation.’
Hugely important, given the tendency of many governments to delay payment of damages, this law says that any order under the Human Rights Act has to be complied with within six months, unless there is an appeal pending.
And then it starts to get even more interesting. Any ‘public officer’ who, alone or with others, violates or participates in violating someone’s rights or freedoms ‘shall be held personally liable for the violation’, even if the state is vicariously liable for his or her actions. Following on from this, if the court orders compensation or any other form of restitution to a victim of state human rights violations, any public officer found to have personally violated those rights ‘shall pay a portion of the compensation or restitution’ as ordered by the court and could also be dismissed.
A question arises from these two clauses, based on the South African experience where public officers – up to the rank of President – sometimes engage in an unending series of court cases, all funded by the tax payer. It is not spelled out whether, under this Uganda law, being ‘personally liable for the violation’ would include liability by the public officer concerned for legal costs.
Following up on the role of the state where monetary restitution orders are made against it by the court, the law says that the state must take all reasonable steps to comply with these orders, and that where the order is not satisfied within the prescribed time, the victim of the human rights violation ‘or any other person’ may apply to court for summons against the person who should pay the restitution to show why he or she ‘should not be committed to civil prison for contempt of court’.
As in many other contries, Uganda’s constitution commits the state to the ‘progressive realisation of rights and freedoms.’ If you believe that the state is not taking adequate steps to make this possible, however, you may apply to the high court for redress, and even if the court finds that this right cannot be realized because of a lack of resources, the court is empowered to order government to take measurable steps for the progressive realisation of that right or freedom.
In addition, the government has a new obligation under this law, to report to parliament every year on what it has done to realise the rights and freedoms that were the subject of such a court order.
Another exciting development is that no one will be able to plead immunity as a defence to litigation under this law. Even if you have immunity under any other law, it is automatically lost if you are found by a court to have violated someone's rights or freedom. That in turn means you may be prosecuted and found liable for things done in the course of your duty.
If someone is believed to be ‘unreasonably detained’, a petition may be brought to the High Court for unconditional release. And if someone in charge of a prison or police station believes that someone else is being held there unreasonably, a petition for release ‘shall’ be brought. An order for release of such a person must be obeyed and it will be an offence to refuse to implement the order with punishment of up to 10 years in jail.
While the normal rule is that human rights challenges must be brought within 10 years of the alleged violation, if the court is satisfied that the victim of the violation was unable ‘for any justifiable reason’ to act within that time, a court may still allow the litigation.
The new law seems to hold out the prospect of considerable human rights protection by the courts in Uganda, and in fact there is a case already pending that could test the sharpness of its teeth. The matter of John Ssetimea and others against George Kaweesi and others, includes a district police commander among the respondents. The case concerns among other issues, an allegation that this police officer told his subordinates to evict thousands of people from a piece of land in the Mubende district.
If the court finds the human rights of the evicted people were infringed, then the police officer at the centre of the case could become a live illustration of the importance of understanding the human rights clauses in the constitution – and then respecting those rights.
There is a second question, however: how will the new law impact on the likes of Stella Nyanzi, in prison over her 'rude poem' about the President?