Wangadya is Shamelessly Swimming Against the tide on Human Rights Enforcement

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Last week Ms. Mariam Fauzat Mutonyi Wangadya, the chairperson of the Uganda Human Rights Commission was in the news for all the wrong reasons. 

First, was her embarrassing altercation with Bobi Wine for complaining about the Commission’s delay in hearing his five-year-old case against the Police for canceling over twenty of his concerts. 

Second, and by far more insidious was her error-ridden article, (New Vision of 21 May 2024), criticizing an award of damages against a police officer. 

It is to the latter that we pay our full attention for its ramifications on the enforcement of human rights in Uganda.

Ms. Wangadya attacked the judgment of Chief Magistrate Epobu Kiboko who awarded UGX 40,000,000 against Nankunda Stella, the Officer in Charge of the Criminal Investigations Department, Namutumba Police Station, for illegally detaining Kaluusi Michael and Mwesigwa Richard, for 5 hours, when they went to report a case of assault.


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Attorney General Kiwanuka Kiryowa is also on record in a January 2023 address to the Uganda Police as warning the Police of the risk of personal liability for violation of human rights./ Parliament of Uganda photo.

She was wrong on the facts, wrong on the law, wrong and alarmist in the calls for reform she made.

Coming from the chairperson of the Uganda Human Rights Commission, her article causes extreme concern. 

First concern is the Commission and its’ role in safeguarding the human rights of citizens and therefore the important role the chairperson plays in all of this.

The Commission is a constitutional body with the primary responsibility of investigating complaints for violations of human rights.

The Commission is also empowered to make recommendations to Parliament for the protection of human rights.

The Commission is therefore supposed to be our stronghold, our fort and place of refuge when human rights are threatened.

Ms. Wangadya’s actions last week unfortunately fell short of her duties under the Uganda Code of Judicial Conduct.
Ms. Mariam Wangadya’s actions last week unfortunately fell short of her duties under the Uganda Code of Judicial Conduct./ Photo: Monitor

More often than not, the threats to human rights are from the State and its’ agencies. The light touch approach to the liability of errant state agents, exhibited by Ms. Wangadya is therefore of extreme concern.

On the facts, Ms. Wangadya was wrong in thinking that the two court process servers had committed an offence and that police officer Nankunda was therefore entitled to arrest and detain them.

She then compounded the error saying that the detention of the two, ‘though perhaps irregular, was not illegal in the sense that it was not for more than 48 hours’.

The succinct ruling of Chief Magistrate Kiboko shows that there was no such offense. The arrest and detention was just plain and simple impunity.

On the law, the chairperson makes spine-chilling statements when she claims that it is wrong to hold police officers individually liable as they are often poorly equipped and may necessarily ‘violate the rights of citizens’!

This coming from our defender of human rights whose very Commission has made decisions on personal liability of police officers is alarming.

The traditional position is the State is liable for the acts of its agents committed in the course of their employment. 

For the mixed fortunes of that principle, one needs to go back to the Nakulabye Incident of 1966 and the cases arising from that in which some courts ruled that the soldiers who wrecked the lives of innocents were not acting in the course of their employment and therefore the government was not liable.

It is this sad history that gives rise to Article 23(7) of the Constitution which allows an award of compensation to a person unlawfully detained, to be made against the person causing the detention, whether that person is the State or an agency of the State or other person or authority.

Bobi Wine/Courtesy Photo
Bobi Wine/Courtesy Photo

This is buttressed by Article 20 which obligates all organs and agencies of government and all persons to respect, uphold, and promote constitutional rights.

On top of this, Article 221 places a special obligation on security organizations to observe human rights and freedoms in the performance of their functions.

The Human Rights (Enforcement) Act also states that a public officer who violates a person’s rights or freedoms will be held personally liable, in addition to the State.

Under this Act, a public officer is to pay a portion of any compensation ordered against the State, arising out of the actions of the public officer. 

This is consistent with the often forgotten but still legal, Prevention and Prohibition of Torture Act that provides that any orders for restitution, compensation, rehabilitation, or any payment in favor of a tortured person, be payable out of the property of the person convicted of the torture.

These provisions on personal liability were a recommendation of the Legal and Parliamentary Affairs Committee in their report on the Human Rights (Enforcement) Bill, dated December 2018.

The Committee noted that public servants were at liberty to abuse human rights with impunity knowing there will be no personal liability for their actions, hence the recommendation.

It is ironic that the Commission itself led the fanfare to celebrate the enactment of the Human Rights (Enforcement) Act and including the provisions on personal liability.

At a 2020 Commission event, then-acting chairperson Dr. Katabalirwe Amooti wa Irumba described the law as the single most comprehensive instrument, while the Director of Complaints, Investigation and Legal Services extolled the virtues of the personal liability provisions.

Attorney General Kiwanuka Kiryowa is also on record in a January 2023 address to the Uganda Police as warning the Police of the risk of personal liability for violation of human rights.

The police was also called to stern attention on this issue of personal liability.

Then Inspector General of Police Okoth Ochola issued a circular on the passing of the Human Rights (Enforcement) Act, saying: ‘Be informed that a new law …  is now in place … you will pay for the people you torture … responsible officers will now be required to personally incur the cost of compensation in event of an award by court’.

Personal liability is progressive and not retrogressive as Ms. Wangadya claims.

If we are to learn anything from Adam and Eve in the Garden of Eden, the consequences of our actions must be a strong stimulus to positive behavior.

It was anomalous that this principle did not apply to errant police officers.

It is consistent with the official oath of police officers to bear true allegiance to the Republic of Uganda and to obey all lawful commands, that their transgressions should attract personal consequences. 

The case of John Kaggwa v Kotoyo (online) shows just how high-handed police officers can be and why they should be held personally liable.

In this case, the 1st Defendant, an officer of the Criminal Investigations Department, arrested and detained the plaintiff a senior lawyer, held him beyond 48 hours, searched his home and office without a warrant, froze his accounts, and even when ordered to do so, refused to release his passport.

The plaintiff won UGX 300m in damages with interest at 10% per annum.

The plaintiff’s attempts to enforce the judgment against the errant police officer were effectively thwarted by the State machinery, in protection of their own.

Sadly, it is the taxpayers including the plaintiff, who will eventually meet this cost.

Ms. Wangadya’s actions last week unfortunately fell short of her duties under the Uganda Code of Judicial Conduct.

She failed to conduct herself with the required decorum and dignity in handling Bobi Wine’s case.

She breached her duty of impartiality with her utterances on a fundamental legal principle relevant to her work.

She has exhibited obvious bias in favor of the State and its agents because of what she perceives as the hard circumstances in which they work.

The obvious solution to that is to address the living conditions and terms of service of our security forces.

If Ms. Wangadya now finds herself swimming against the tide, at total odds with the law and principles she is required to apply, then her position is no longer tenable.

She must not wait to be swept away, like flotsam.

She must resign and perhaps go rear some ducks. 

And lastly, we point out to Ms. Wangadya that ‘Advocate’ (or ‘Adv’ as she styled it) is not a title in our noble profession.

It is not the equivalent of ‘Doctor’ or ‘Architect’ as to be used to preface one’s name.

The Authors are all advocates. 

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