Why Wangadya is wrong: Justifying personal liability for Human Rights violations.
- Lex Amica
- Jun 10, 2024
- 7 min read
Why Wangadya Is Wrong: Justifying Personal Liability For Human Rights Violations.
Calvin Kahiigi*
Abstract
The Chairperson of the Uganda Human Rights Commission, Ms. Mariam Fauzat Wangadya, contends that police officers should not be personally liable for human rights violations due to the principle of vicarious liability, which holds the state responsible. However, the Human Rights (Enforcement) Act, 2019 mandates personal liability for public officers who violate human rights. This article highlights the necessity of personal liability to deter abuse of power, uphold the rule of law, and enhance public trust and professionalism within government institutions.
1. Introduction
Over the years, the Attorney General has been held vicariously liable for human rights violations by public officials. Notable court decisions in this regard include Muwonge Vs Attorney General, and Victor Juliet Mukasa & Anor Vs Attorney General, where the Attorney General was held liable for acts of police officers. However, with the enactment of the Human Rights (Enforcement) Act, 2019, things have somewhat changed.
1.1 Background
On 15th May 2024, His Worship Epobu Daniel Kiboko, the Chief Magistrate of Iganga Chief Magistrate’s Court, issued an order against Ms. Nankunda Stella, a police officer, to pay 40,000,000 UGX to Kaluusi Micheal and Mwesigwa Richard, having found that the former was liable for detaining and physically torturing the latter at Namutumba Police Station. He observed as follows;
“Every person is entitled to enjoyment of fundamental rights and freedoms deriving not only from natural law but also as provided for under international and national legal instruments starting with the Universal Declaration of Human Rights of 1948, followed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, among other instruments.”
The Magistrate was persuaded by the decision in the case of Mohamed Feisal and Others Vs Henry Kandie and Others, wherein the Police Officers were found to have violated the Petitioners right to liberty when they kept them in the police car for 3 hours.
Following the decision in Kaluusi Micheal and Anor Vs. Nankunda Stella, Wangadya, the Chairperson of the Uganda Human Rights Commission observed in the New Vision of Tuesday, 21st May 2024:
“Our Police Officers work in extremely difficult conditions that sometimes make it inevitable for them to ‘violate’ the rights of citizens who come into conflict with the law.”
Wangadya’s major concern is that the police officers should not be individually ‘punished’ for human rights violations because the principle of vicarious liability recognises that an employee acts professionally on behalf of the employer, and the only reason this employee has the authority and tools of work is to act on behalf of the employee; “It follows that any wrong committed in the execution of that mandate, done in good faith, should not result in the punishment of the employee.”
1.2 Analysing Wangadya’s Position
Something about human rights violations being “inevitable”, and being done in “good faith” just doesn’t sound right. Section 10 (1) of the Human Rights (Enforcement) Act provides that a public officer who, individually or in association with others, violates or participates in the violation of a person’s rights or freedoms shall be held personally liable for the violation notwithstanding the State being vicariously liable for the violation. Wangadya’s assertions that this position is not unfair but retrogressive are in disregard of the purpose and aim of the legislation. Pursuant to Pages 32 to 35 of the Report of the Sectoral Committee on Legal and Parliamentary Affairs on the Human Rights (Enforcement) Bill, 2015, the Committee observes that when human rights violations are perpetuated by public officers, Government is held liable. Indeed, court in the case of Behangana & Anor Vs Attorney General noted with concern that increased incidents of human rights violations by police and other state actors had reached alarming levels necessitating the prosecution of those officers implicated in their individual capacities. Court observed:
"Lastly perhaps the time has come for legal practitioners to consider in cases of this nature adding as parties the perpetrators, and their supervisors, of impugned actions in their personal capacity so that they can face civil consequences for their wilful disregard of the fundamental rights and freedoms of the people of this country."
As such, the Court declared that the arrest and detention of the petitioners on the facts of this case contravened Article 23 of the Constitution and the police failed to comply with their obligations in this regard under Article 20 (2) of the Constitution.
Bearing the aforementioned decision in mind, the Committee noted that because Government is variously liable for the actions of its servants, these servants are at liberty to abuse human rights of Ugandans with impunity knowing that there will be no personal liability for their actions. As such, the Committee recommended that the Bill should contain provisions allowing a victim or any other person to take action against any person in authority who has infringed on the right of another in his or her personal capacity. Consequently, Parliament adopted that proposal as reflected in the Parliamentary Hansard of January 15th, 2019.
2. Justifying Personal Liability for Human Rights Violations
Holding public officials personally liable for human rights violations is very crucial in inter alia, upholding the rule of law, protecting individual rights, and ensuring accountability within the government as discussed hereunder.
2.1 Accountability and Justice
Personal liability ensures accountability within the government because it serves as a strong deterrent against the abuse of power by public officials. For instance, the case of Behangana & Anor Vs Attorney General revealed significant misconduct of law enforcement officers who ought to be prosecuted in accordance with the law. The court held that:
“It is clear that the petitioners have suffered horrendously at the hands of the police who have, as it were, disobeyed every rule in the book and brought such dishonour to law enforcement. The petitioners were arrested and detained illegally. They were tortured and beaten. They suffered physical and other harm. They have lost property and their business activities have been disrupted significantly not only because of the unlawful detention of the petitioner no.1 but the unlawful seizure of a significant part of his business inventory.”
Personal liability ensures that justice is served by addressing the specific wrongdoings of individuals.
2.2 Public Trust
Holding public officials personally liable for their actions enhances credibility and legitimacy of government institutions. In Kaluusi Micheal and Anor Vs. Nankunda Stella, the learned magistrate stated as follows:
“I am inclined to believe the Applicants that they were psychologically tortured when they were detained at Namutumba Police Station by the Respondent and were prevented from leaving the place to go and execute their other duties elsewhere as officers of court. I take note of the fact that the Respondent acted out with gross impunity towards the applicants, this kind of excesses by people in authority towards citizens to whom they are accountable, should be condemned at all costs. For those reasons above, I award the Applicants UGX 40,000.000/= as compensation.”
When public officials such as police officers know they can be personally held accountable for their actions, they are more likely to adhere to legal and ethical standards which in the long run, also enhances public trust in government institutions.
2.3 Professionalism and ethical conduct
Personal liability also encourages public officials to maintain high standards of professionalism and ethical conduct because knowing they can be personally sued or prosecuted for human rights violations nurtures a sense of responsibility and caution in their official duties. Additionally, personal liability provides a direct avenue for redress, ensuring that victims can hold perpetrators accountable in a manner that state liability alone cannot achieve because victims of human rights violations often seek not just compensation but also justice against those directly responsible for their suffering. For instance, in the case of Daisy Nakato vs Kabalagala Police Station, Nakato sought recourse from the Uganda Human Rights Commission, having been manhandled by one Mr Nyombi, a policeman who hit her on the shoulders with a gun, slapped her twice; and pointed his cocked gun at her. The Commission found that Nakato had been subjected to inhuman and degrading treatment and ordered the inspector general of police to initiate disciplinary proceedings against Nyombi for abuse of office.
2.4 Compliance with International Human Rights Standards
Additionally, International human rights frameworks, such as those established by the United Nations, emphasize the importance of accountability for human rights violations. For instance, Article 2 (3)(a) of the International Covenant on Civil and Political Rights provides that each state party to the covenant undertakes to ensure that any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. In the same spirit, Objective XXVIII of the National Objectives and Directive Principles of State Policy provides inter alia that the foreign policy of Uganda shall be based on inter alia, respect for international law and treaty obligations. Thus, by holding public officials personally liable for human rights violates, Uganda has demonstrated commitment to these international standards and obligations.
2.5 Rule of Law
In democratic societies, the rule of law is paramount. For example, Article 1 of the Constitution emphasizes supremacy of the law, by providing inter alia that all power belongs to the people who shall exercise their sovereignty in accordance with the Constitution. Holding public officials personally liable for human rights violations aligns with democratic principles by ensuring that all individuals, regardless of their position, are subject to the law. This promotes equality before the law as enshrined under Article 21(1) of the Constitution, and reinforces the principle that government power must be exercised within the boundaries of respect for human rights.
3. Conclusion
It is imperative to note that under Article 20 of the Constitution, fundamental rights and freedoms of the individual are inherent and not granted by the State and as such, shall be respected, upheld, and promoted by all organs and agencies of government and by all persons. Therefore, public officials are not only responsible for the protection of human rights in their official capacity but also in their individual capacity. Personal liability for public officials in respect of human rights violations addresses the shortcomings of vicarious liability by directly targeting the individuals responsible for the violations, thereby enhancing justice for victims and reinforcing the integrity of government institutions. This approach not only meets domestic legal standards but also aligns with international human rights obligations, contributing to a more just and accountable society.
*The Author is a legal scholar. He is appreciative of Mr. Karugaba Phillip’s guidance in writing this article.
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