When a court orders the payment of compensation for a victim of human rights violations by state, any public officer who is involved ‘shall pay a portion of the compensation.
A year after Human Rights Watch issued a strongly-worded report on torture and illegal detention carried out by security officers in Uganda, a court in that country has awarded substantial damages to a man who was held and tortured for 17 months by the country’s Internal Security Organisation (ISO). The court also ordered that the damages, and legal costs, be paid by the members of the ISO involved.
Musa Nsereko brought the application to the high court, naming the members of Uganda’s internal security organisation (ISO) who, along with other militia, he says were responsible for his detention and/or torture. He asked for a declaration that the ‘torture, brutality and violence unleashed’ against him amounted to a violation of his constitutional rights. In compensation for the torture and detention, he also claimed considerable compensation.
According to Nsereko, he was arrested on 27 May 2018, detained at an ISO ‘safe house’ and then taken to an island in Lake Victoria where he was held and tortured for 17 months. He claimed he was not informed of the reason for his arrest and was not subsequently charged.
During his detention, he was not allowed to see any members of his family. And although he became ill, his captors refused to let him have medical treatment. Another result of his long detention was that his business suffered and his children had to stop going to school: he was the only bread-winner and his absence meant their school fees could not be paid.
Fractured
As to the ISO operatives themselves, he said that ISO director general, Colonel Kaka Bagyenda, had visited the island where he ‘addressed’ those being held there. Nsereko named Bagyenda and 14 other ISO members as those against whom he was bringing his damages’ application. He said he was forced to sleep every night in a room flooded with dirty water, and with cuffs around his hands and legs. Among other tortures, he was beaten ‘every morning, during the day and at night’ and in the process his left hand and joints in that hand were fractured.
Finally, he claimed that the ISO action against him, ‘greatly injured’ his credit, his character and his reputation and that he has suffered ‘severe mental anguish, pain, embarrassment and inconvenience’ for which he seeks compensation.
‘Witness of torture’
Of particular interest, Nsereko explains that when he was released, he appeared before Uganda’s parliament as a ‘witness of torture’, with his evidence forming part of the report on the ‘Committee on human rights on alleged torture in ungazetted detention centres’.
It’s not clear whether this is a reference to the March 2022 report by Human Rights Watch, entitled, ‘“I only need justice”: unlawful detention and abuse in unauthorized places of detention in Uganda’.
This 62-page looked at ‘enforced disappearances, arbitrary arrests, unlawful detention, torture and other ill-treatment by the police, army, military intelligence and Uganda’s intelligence body, the Internal Security Organisation, most in unlawful places of detention in 2018, 2019 and around the January 2021 general elections.’
Pledged
When a copy of the report was presented to Uganda’s president, Yoweri Museveni in June 2022, on the international day in support of victims of torture, he (Museveni) ‘pledged to end illegal detention, torture and human rights violations’ in Uganda.
He said, ‘Cases of illegal detention, torture and human rights violations will not be tolerated. Torture is not only wrong but unnecessary,’ and that ‘the forces’ were being educated so that they no longer made ‘unnecessary mistakes’.
The judge who heard Nsereko’s case, Musa Ssekaana, said that papers had been served by Nsereko on all the respondents except the attorney general, by way of substituted service in a local newspaper, but that none of them had responded or filed any affidavit in reply. This meant that the court had to ‘deem’ that what had been pleaded by Nsereko against them in his affidavit ‘is admitted’.
Forbidden
The judge said it wasn’t up to individuals only to work out how to ‘deliver on the promise of human rights’. The government should be instrumental in respecting and fulfilling them, he said. Torture was forbidden in any form, and under all circumstances.
He added, ‘This court cannot be a silent spectator where unchallenged facts … point to acts of torture by the … respondents who inflicted the torture, cruel and inhuman and degrading treatment [on Nsereko] for a period of 17 months.’
All that the respondents had to say came via an affidavit from ISO’s director for operations, Jones Rugumya, who said that if Nsereko was indeed arrested, detained, tortured and subjected to forced labour, it wasn’t by the ISO, and that if the ‘safe houses’ mentioned by Nsereko existed, they weren’t used as detention centres or as places where occupants were tortured. He added that it was ‘in the interests of justice, good conscience, equity, good governance and accountability’, that the court should not grant Nsereko’s application.
‘Personally liable’
In court, counsel for the ISO said the torture claimed by Nsereko hadn’t been proved by ‘cogent evidence’. Further, the ISO was supposed to collect internal intelligence and it never subjected Nsereko to forced labour, as he claimed.
The court found that the ISO respondents had not replied to Nsereko’s evidence and that there was no justification for his prolonged detention, something that amounted to a violation of his constitutional rights and freedoms.
The constitution provided for an application to be made to court for redress in such a case but, the judge pointed out, the law also said that a public officer who, alone or with others, violates someone’s rights or freedoms ‘shall be held personally liable for the violation notwithstanding the state being vicariously liable’.
Exemplary damages
The law went on to say that when a court ordered the payment of compensation for a victim of human rights violations by the state, any public officer who is found to have ‘personally violated’ that person’s human rights ‘shall pay a portion of the compensation’ ordered by the court.
In this case, the judge awarded UGX 100 m against all the ISO respondents personally, as compensation for the violation of Nsereko’s rights against torture, cruel and inhuman and degrading treatment and forced labour. A further UGX 60m was awarded against the ISO respondents for Nsereko’s 17-month illegal detention, with an additional UGX 15m against the respondents as ‘punitive and exemplary damages … for their conduct’.
This UGX 175m was subject to interest of 15% from judgment until payment in full and the judge also awarded costs against the ISO members. (Africalii.org)
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