The High court in Kampala has ordered Kyengera town council and its former mayor, Hajji Abdul Kiyimba to compensate the 20 people who were tortured after their arrest during the 2020 Covid-19 lockdown.
Civil Division judge Dr Douglas Singiza, ordered that each of the tortured victims be awarded Shs 5 million as general damages and Shs 2.5 million as exemplary damages - payable equally by Kiyimba and Kyengera town council.
"Considering the circumstances under which 1st to 20th applicants were arrested and the debasing language that was used at a time when every segment of society was vulnerable due to the Covid-19 pandemic, I consider that the award of UGX 2,500,000 as exemplary damages to each of the 1st– 20th applicants, payable equally by Hajji Kiyimba and Kyengera town council, to be sufficient," said Singiza.
Records before the court indicate that during the Covid-19 pandemic and the lockdown measures taken by President Museveni in March 2020, several stringent measures were adopted that limited several rights of the public. The suspension of public and private transport, closure of schools and bars, banning of social events, closure of places of worship, and the imposition of a curfew were among the interventions to protect the population from the pandemic.
As part of the enforcement of the Covid-19 restrictions, the victims while living in a community residence in Nkokonjeru 'A' village in Kyengera town council, Wakiso district, were arrested on March 29, 2020 by police and other state authorities and allegedly tortured. Following their arrest, they sued Kiyimba, principal officer Philemon Woniala, Kyengera town council and the Attorney General in their case before the High court.
They told the court that on the morning of the said date, their residence was invaded by a mob, among which were the respondents, that subjected them to all manner of torture because they were allegedly practising homosexuality.
Through their lawyers including Adrian Juuko, executive director of Human Rights Awareness and Promotion Forum (HRAPF), they said that the actions of torture included beating, hitting, burning using a hot piece of firewood, undressing, tying, binding, conducting anal examinations, and inflicting other forms of physical, mental and psychological violence based on the suspicion that they are homosexuals, an allegation they deny.
As a result, based on the same suspicion, the victims were then arrested, taken to Nkokonjeru B police station, and charged with doing a negligent act likely to spread infection by disease.
They were charged before the Mpigi Chief Magistrate's court and remanded to Kitalya Mini-Max Prison, where they were again allegedly beaten, examined, harassed, and subjected to discrimination. They further accused Kiyimba of inviting journalists and members of the public to enter the premises to witness, observe, photograph, and videograph the 23 arrested youths on the grounds that they were homosexuals, during which time Kiyimba hurled insults at the arrested persons.
The victims further said that they were hit with a big stick, after which they were ordered to march in single file to Nkokonjeru police post. Court further heard that while at Kitalya prison, the prisons officer separately ordered Ashraff Walugembe to strip naked in the presence of other prisoners and burnt him between the thighs with a piece of burning wood. Furthermore, a one Akankwasa, one of the prison warders, ordered a prisoner to conduct an anal examination on Rodney Sheema.
HRAPF filed a complaint with the Attorney General, requesting that the alleged violations be investigated, but received no response, prompting the applicant to approach the High court. In his decision, Singiza ruled that the applicants were subjected to several acts of torture, inhuman and degrading treatment, and violation of their privacy by the respondents. The judge said that there was no evidence however that they were tortured because of being homosexuals.
"However, it has not been proved that the way in which they were treated differed from how other persons who breached the Covid-19 restrictions, or indeed any other criminal suspects, are ordinarily treated," said Singiza.
The judge stated that oftentimes, acts of discrimination take place behind closed doors and that all that is left for evidence are the complainants' verbal accounts and recollections vis-à-vis the respondents' denials. But adds that it would be a dangerous precedent to treat every unsupported claim of discrimination as a violation of their rights.
He analysed the Human Rights Enforcement Act and found that individuals who violate the rights of others should be held personally liable as opposed to leaving it to the government to pay using taxpayer's money, and thus ordered Kiyimba to also meet the consequences of his actions.
"In the light of the framework under the HREA, this court takes the view that liability for human rights violations ought to be shouldered proportionally by the individual perpetrators and their principals, usually government agencies, so that the pain and cost of violations is distributed and felt across the board as opposed to leaving it to the taxpayer," held Singiza.
The beneficiaries of the judgement are: Henry Mukiibi, Ashraf Walugembe, Saddam Katerrega, Ivan Kawooya, Joel Edward Oketch, Raj Juuko, Dennis Ssamula, Jackson Ssendagire Mayanja, Rodney Sheema, Tevin Harris Kifuba, Mark Muhereza, Jabel Tushabomwe, Abbey Gwaivu, Andrew Kibalama, Ronald Ssenyonga, Yahaya Muyomba, Douglas Tumuhimbise, James Tindyebwa, Kelvin Kugonza, Karim Yiga.
In 2020, another High court judge Michael Elubu awarded the same group Shs 95 million after they sued the government for having denied them a right to be accessed by their lawyers after being arrested during the lockdown.
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