A judge of Uganda's high court has ruled that individual members of the police and other security forces may not rely on 'higher orders' or claims that they were waiting for orders 'from above', to justify human rights violations. Judge Margaret Mutonyi ordered significant damages as compensation to a number of applicants after she found police had abused their rights. In one of the two applications she dealt with, a number of people were unlawfully arrested and detained for participating in a legal protest against the raising of Uganda's presidential age limit. In the other case, the two wives of a man being investigated for murder were both arrested. Between them they had about a dozen children, including babies under a year old and still breast feeding. All the children were taken away by the police after the mothers were detained. The police caused the mothers severe stress by refusing to tell them what had happened to the children, even saying they had been given away and that they would never see them again. The arrested children were held for 51 days. The question of whether following 'higher orders' is a valid excuse for rights abuse in the security forces is a long-standing issue in international law, and the International Military Charter (Nuremberg), for example, states: 'The fact that the Defendant acted pursuant to orders of his Government or of a superior, shall not free him from responsibility.' It may however be considered in mitigation.
It would be difficult to overstate the potential importance of a case just decided by the High Court in Uganda. More than a dozen applicants went to court against a number of police officers and the Attorney-General. Originally two separate matters, the applications were joined by the High Court judge presiding, Margaret Mutonyi, who said they raised similar issues.
All the applicants complained about police treatment after what they said had been an unlawful arrest. One case involved police arrests of people involved in otherwise uneventful peaceful protest action aimed at the government’s plan to raise the upper limit the age at which a President could be elected. The other concerned a murder investigation. In the latter, in addition to arresting the man they suspected, police picked up his wives and a number of children. The two co-wives claimed they were abused and treated in a way that infringed their rights. In addition, police took their children from the family home and initially refused to say where they were.
Mutonyi awarded significant damages for the rights’ infringements in the two cases, and there were a number of important take-aways for the police. The judge emphasised that the task of the police was not to arrest people merely for staging a protest. Rather, they were only entitled to act if the protest became violent. This had already been made clear by earlier judgments of the Ugandan courts. Apparently, however, the police either did not know about the court declaration or else they did not pay it any attention, she said.
'Just filling up cells'
In a crucial finding, the judge said that it would not help a police officer to claim that he or she was holding a member of the public, while ‘waiting for orders’ from a higher authority. Each member of the police was responsible for ensuring that the rights in the Constitution were protected, she said. It was clear that the police did not have any real charge to bring against the applicants, but were just filling up cells at the central police station in Kampala ‘obsessed with the violation of individual rights in total disregard of the (provisions) of the 1995 Constitution of Uganda’.
Mutonyi also had some comments about individual police officers. She said one, Alfred Ndugutse, had initiated the arrests in the case involving protesters. He had acted ‘in total contravention and contempt’ of the court decision laying down that the police should ‘regulate’ rather than ‘prohibit’ peaceful demonstrations. Ndugutse initiated the arrests ‘through his wrong information in his capacity as crime intelligence officer’. Clearly, he was ignorant of the true state of the law. But that ignorance was no defence. He was involved in the ‘wanton arrest’ of peaceful demonstrators and thus violated their constitutional rights, something for which ‘he is personally held liable’.
'Divergent' political views
Assistant Superintendent of Police (ASP) Brian Nyehangane was in charge of the Nagalama police station. In that capacity he refused bail to the applicants and also failed to bring them to court within 48 hours, holding them for between 192 and 120 hours, with no justification. He had a constitutional duty to respect the human rights of the applicants but ignored this duty. She said the Nagalama police station appeared to have become ‘a dumping station’ for people with ‘divergent’ political views. Nyehangane ‘intentionally’ continued the violation of rights begun by Ndugutse’s arrest orders. The ASP was required by the Constitution to respect human rights and freedoms and the law protected him from the consequences if he refused to follow ‘illegal and unconstitutional directives’ from his superiors.
In response to his claim that he had to wait for orders ‘from above’, the judge said justifications based on ‘waiting for orders from above’ or acting on instructions ‘from above’ might be acceptable in relation to routine administrative functions within the security forces, it was not acceptable ‘in the modern constitutional and human rights regime’. This was because states and their agencies had to uphold and protect citizens’ rights. ‘Any officer who violates the rights of citizens on orders from above or under the pretext that he or she was waiting for orders from above, does so at his own peril,’ she warned. If a regional police officer ‘dumps citizens’ at a particular station claiming this was because of overcrowding, it usually meant that the human rights of those concerned were being violated and the receiving officer was supposed to act professionally and respect their rights.
The same police officer had been involved in the case of the unlawfully arrested and detained mothers and their children. ‘I therefore find him personally liable for the violation’ in both applications.
A third police officer, Sarah Nankwanga, admitted to blindfolding the two mothers, and justified this as standard interrogation practice. Mutonyi said the court found that Nankwanga was not a fit and proper person to work as a police detective. ‘She is immoral, inconsiderate’ and inflicted psychological torture on the two mothers. The judge, however, also had praise for some of the police involved, saying one needed to be commended for his intervention by helping the mothers be reunited with their children.
Should the court award damages? In answering this question, the judge committed the judiciary to ensuring the rule of law in Uganda. In another key passsage she wrote, ‘If the Uganda judiciary is to remain relevant, it has to rise to the occasion … by accepting responsibility for the maintenance of the rule of law.’ Judges had to be willing to ‘check executive action’ by awarding damages against the Attorney-General as a representative of the state and all the state’s ‘reckless or incompetent staff’, as well as awarding punitive damages against individuals who deliberately violated the human rights of others.
She concluded that adequate compensation should be awarded to hold police officers accountable as well as ‘any other security agencies that are notoriously known for violating the rights of individuals’. This would serve as a deterrent to them and others ‘because it is a notorious fact that some are rewarded or applauded for acting with impunity against citizens’. This amounted to ‘gross abuse of authority and must be discouraged and condemned by this court.’