Mukasa and Oyo v. Attorney General, High Court of Uganda at Kampala (22 December 2008)
The applicants filed a complaint to the High Court for the alleged violation of their fundamental rights and freedoms by the respondent and its agents.
The first applicant was a prominent LGBT rights activist. One night, two government officials raided her house. Although they did not have a search warrant, they seized several documents relating to her activities. The officials also illegally arrested the second applicant, who was a guest at the first applicant’s house. The first applicant was not at home at the time.
At the police station, the second applicant was treated in a humiliating manner, forcibly undressed and “fondled”, allegedly to determine her sex. She was then released without charges but ordered to return the following day with the first applicant.
The following day, the two applicants went back to the police station. The police said that there were no pending charges against them and that the first applicant could have her documents back. However, when she got home she realised that the police had withheld some of her documents.
Whether the applicants’ rights to personal liberty, human dignity, protection from inhuman treatment, and privacy of person, home and other property, had been violated.
Constitution of Uganda, Article 23 (protection of personal liberty), Article 24 (respect for human dignity and protection from inhuman treatment), and Article 27 (right to privacy).
Convention on Elimination of all Forms of Discrimination against Women, Article 3.
Universal Declaration of Human Rights, Article 1.
Reasoning of the Court
The applicants argued that the acts of the police and government officials breached their constitutional rights. In particular, they submitted that the warrantless search of the first applicant’s house violated her right to privacy and that the second applicant’s arrest breached her right to personal liberty. They also argued that the second applicant had been subjected to sexual harassment and indecent assault amounting to degrading treatment.
The respondents denied all the allegations presented by the applicants. The officer who was in charge of the police post at the time the second applicant was arrested denied the arrest, sexual harassment, and seizure of property.
One of the government officials denied that the second applicant was arrested at the first applicant’s house. He asserted that she had been arrested in a bar, where she was publicly kissing the first applicant. The official testified that the residents, shocked by the applicants’ behaviour, were about to lynch them and that he arrested them in order to save them. According to the official, the first applicant had managed to escape and therefore he only took the second applicant to the police station. He denied having entered the first applicant’s house or humiliating the second applicant.
On the basis of the evidence at hand, the Court concluded that there had been no “bar incident” and that the applicants were telling the truth.
The Court found that the actions of the police and of the government officials “clearly amounted to a breach of [the plaintiffs’] constitutional guarantees… and a violation of International Human Rights Instruments to which Uganda is a party.”
First, the first applicant’s house had been forcibly opened and searched without a search warrant. The government officials had no authority to take such actions, which were therefore unlawful. However, the respondent in the proceedings (the Attorney General) was not liable for these actions.
The Attorney General was nevertheless accountable for the actions of the police. By forcibly undressing the second applicant in public and touching her breast, the police had humiliated her and contravened the constitutional provision prohibiting degrading treatment.
Furthermore, the Court found the actions of the police violated the provisions of several human rights treaties, including Article 1 of the UDHR, guaranteeing equal dignity and rights to all human beings.
Article 3 of CEDAW had also been violated. This provision guaranteed the equal enjoyment of, among others, the rights to liberty and security of the person, equal protection under the law and freedom from torture and other cruel, inhuman or degrading treatment.
Moreover, the Court found that the police had not handled the first applicant’s documents properly. Her right to privacy of person, home and other property had therefore been violated.
The Court held that the applicants’ rights to human dignity and protection from inhuman treatment, personal liberty and privacy of the person, home and property had been violated and awarded them compensation.
Mukasa and Oyo v. Attorney General, High Court of Uganda at Kampala (full text of judgment, PDF)