ARTICLES

Jurisdiction ratione materiae of the Uganda Human Rights Commission: Making sense of the ambiguity in the jurisprudence

Henry Onoria

Senior Lecturer, Department of Public and Comparative Law, Faculty of Law, Makerere University, Kampala, Uganda

SUMMARY

In the first decade of its existence (1998-2008), the Uganda Human Rights Commission has dealt with a significant number of complaints and, in doing so, has invariably had to bear in mind its competence in terms of - although this terminology has never been employed - its jurisdiction ratione materiae. The jurisdiction ratione materiae of the Commission as a tribunal is primarily to deal with complaints alleging violations of human rights. This should not have been contentious since the bulk of complaints lodged with the Commission since 1998 prima facie concern human rights. However, from 2006, the uncertainty regarding the Commission's jurisdiction ratione materiae has been manifested in several decisions, especially in respect of complaints alleging violations of the rights to life and property. The Commission's jurisdiction ratione materiae has been contested in such complaints through preliminary objections raised on the part of the state and, although rejected in the early decisions up to 2005, the Commission has since 2006 exhibited a willingness to uphold the objections. The discourse over the Commission's jurisdiction ratione materiae has had implications for other aspects of the Commission's mandate (including its jurisdiction ratione personae and the limitation period for presentation of complaints). Ultimately, the ambiguity over the Commission's jurisdiction ratione materiae is essentially a conceptual one pertaining to the nature (and content) of claims presented before the Commission and its quasi-judicial character.

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* LLB (Makerere), LLM PhD (Cambridge); honoria@law.mak.ac.ug
1 Constitution of the Republic of Uganda, 1995, art 51(1). The Commission is the result of recommendations of two commissions set up in the early 1990s. A commission of inquiry established to inquire into the violations of human rights in Uganda from 1962 to 1986 presented as one of its key recommendations the need for the establishment of a permanent institution on human rights to act as a 'watchdog' over human rights in Uganda: Report of the Commission of Inquiry into Violations of Human Rights in Uganda from 1962 to 1986, UPPC, Entebbe, 1993, 582, recommendation 13.1(11). Sub-sequently, a constitutional commission recommended a permanent and independent human rights body to be enshrined in a prospective new constitution: Report of the Uganda Constitutional Commission: Analysis and Recommendations, UPPC, Entebbe, 1993, 185-188, paras 7.175-7.181, a recommendation that was acted upon by a Constituent Assembly debating the constitutional proposals in 1994, and a permanent Human Rights Commission was provided for under the 1995 Constitution.
2 Art 52(1)(a).
3 Cap 24 (Laws of Uganda 2000), sec 8(1)(a). The Act enacted in 1997 set out the legal framework for the formal establishment of the Commission in 1998.
4 Uganda Human Rights Commission (Procedure) Rules, SI 16/1998, rule 4.
5 Operational Guidelines of the Uganda Human Rights Commission, 1998, guidelines 3-4. The Rules and Guidelines are adopted in light of the powers conferred upon the Commission to 'establish its operational guidelines and rules of procedure'. 1995 Constitution, art 52(3)(a).
6 Operational Guidelines (n 5 above) Guideline 3(a).
7 As above. The Commission also regards its jurisdiction ratione materiae to include 'a complaint about detention under emergency laws (art 48(1) of the Constitution)'. Operational Guidelines (n 5 above) Guideline 3(b).
8 Operational Guidelines (n 5 above) Guidelines 4(e)-(f).
9 Complaint UHRC 501/ 2001 (decision of 21 September 2001).
10 n 9 above, 3 8-9.
11 n 9 above, 4-9.
12 Complaint UHRC G/263/ 2000 (decision of 24 February 2004).
13 n 12 above, 4-5.
14 See eg Stephen Okwalinga v Attorney-General, Complaint UHRC 24/2004 (decision of 26 August 2006). Commissioner Wangadya held that a complaint founded on discrimination 'need not mention the grounds under article 21 of the [1995] Constitution'.
15 See eg Lydia Nabuwembo v ACP Bakesiima & 2 Others, Complaint UHRC 219/1998 (decision of 23 January 2001); Edward Kamana Wesonga (Legal Representative of late Patrick Pongo) v Attorney-General, Complaint UHRC 197/1998 (decision in 2002); Mariam Rajab Tugume v Attorney-General, Complaint UHRC 776/1998 (decision of 23 November 2003); Hajji Ali Mutumba v Attorney-General, Complaint UHRC 225/1998 (decision of 12 December 2003); Sgt Eriya Keisire v Attorney-General, Complaint UHRC FP57/2003 (decision in January 2004); Omong Juk v Attorney-General, Complaint UHRC G167/1998 (decision of 23 February 2004); Juma Abukoji v Attorney-General, Complaint UHRC G/326/1999 (decision of 24 February 2004); Margaret Atoo v Attorney-General, Complaint UHRC G/88/2002 (decision of 28 July 2004); John Baptist Oryem v Attorney-General, Complaint UHRC G/32/1999 (decision of 27 July 2004); James Bwango v Attorney-General & Another, Complaint UHRC FP75/2003 (decision of 1 September 2004); Leo Rusoke v Attorney-General, Complaint UHRC FP/44/2003 (decision in 2005); Peace Nshemereirwe v Attorney-General, Complaint UHRC 249/2002 (decision of 30 August 2005).
16 Complaint UHRC G/144/2003 (decision of 1 December 2004).
17 n 16 above, 4.
18 Complaint UHRC G/206/2000 (decision in 2005).
19 n 18 above, 4 (my emphasis).
20 As above.
21 Complaint UHRC 1163/2000 (decision of 12 September 2007).
22 n 21 above, 5 14 (my emphasis).
23 See eg Thomas Ocheing v Attorney-General, Complaint UHRC G/26/1999 (decision of 12 May 2004); Yusuf B Mayu v Bumbo Sub-County, Complaint UHRC S/46/2002 (decision of 20 June 2004); Peter Amone v Attorney-General & Another, Complaint UHRC 227/1997 (decision in 2006); Julius Peter Okot v Attorney-General, Complaint UHRC G/149/2000 (date of decision not indicated).
24 Complaint UHRC G/144/2000 (decision in 2006).
25 n 24 above, 2-3 (my emphasis). In subsequent decisions involving similar claims of occupation of land by the armed forces, the Commissioner took the same stance. See eg John Olong & 7 Others v Attorney-General, Complaint UHRC G/176/2003 (decision of 23 October 2006) 4-5; Nyero Santo Akoli v Attorney-General, Complaint UHRC G/268/2003 (decision of 24 October 2006) 3. See also John Kilara & 2 Others v Attorney-General, Complaint UHRC G/74/20 03 (decision of 23 October 2006).
26 Cap 79 (Laws of Uganda 2000).
27 n 16, 4 (my emphasis).
28 n 18, 4 (my emphasis). See also the Kamana Wesonga case (n 15 above) 13. Commissioner Aliro-Omara remarked: 'In this complaint [the State Attorney] is under the impression that this complaint is brought under the Law Reform (Miscellaneous Provisions) Act. That however is not the case. Complaints about human rights violations are brought before the Commission under article 52(1)(a) of the Constitution and under the Human Rights Commission Act 1998 and regulations made under it. It would therefore be wrong to [contend] ... that the complaint as filed does not conform to section 10 of the Law Reform (Miscellaneous Provisions) Act.'
29 See the John Olong case (n 25 above) 5
30 Complaint UHRC 222/2003 (decision in 2005).
31 n 30 above, 3.
32 n 21 above, 4.
33 n 15 above, 9 (my emphasis).
34 See n 28 above and accompanying text.
35 See nn 9, 12 & 14 above and accompanying text.
36 See in this regard the decisions of Commissioner Aliro-Omara in cases where the victims had no surviving dependants (and in which he underscored the distinction between a claim for the violation of the right to life and a claim for dependency): John Baptist Oryem case (n 15 above) 21-22; Omong Juk case (n 15 above) 11-3.
37 n 2 above, art 53(1). This is reaffirmed under the Uganda Human Rights Commission Act (n 3 above) sec 7(2).
38 Betty Nakiyingi v Major Kakooza Mutale & 2 Others, Complaint UHRC 337/1998 (decision in 2000).
39 Complaint UHRC 671/1998 (decided in 1999).
40 For an overview of the controversy over the 'movement' political system under the 1995 Constitution, see eg N Kasfir 'No-party democracy in Uganda' (1998) 9 Journal of Democracy 49; J Mugajuj & J Oloka-Onyango (eds) No-party democracy in Uganda (2000).
41 n 39 above, 6 (my emphasis).
42 n 39 above, 7-8. Under arts 137(1) and (5) of the 1995 Constitution, a court to which a matter had been presented was required to refer the matter to the Constitutional Court as the court competent to interpret the Constitution.
43 n 39 above, 9.
44 n 25 above, 4.
45 As above. See also the John Kilara case (n 25 above) 10-11; Nyero Santo Akoli case (n 25 above) 5-7.
46 n 14 above, 6 (my emphasis).
47 n 14 above, 8. See also the John Olong case, where the Commissioner, reflecting on the limits of the Commission to deal with the rights guaranteed under art 26 (property) and art 42 (administrative justice), stated: 'Although article 52(1)(a) enjoins the Commission to investigate any human right, where certain specific rights are infringed upon, redress, for example compensation, can only be sought from the courts of law. Such rights include (but are not limited to) the right to property under article 26 and the right to just and fair treatment under article 42 of the Constitution. Both articles provide for petitioning courts of law by the aggrieved persons' (n 25 above) 5.
48 For a critique of the Commission's conceptualisation of its quasi-judicial character in the case, see, however, R Sengendo & J Katalikawe 'Revisiting the question of application or interpretation of the 1995 Constitution: A critical examination' (2001) 7 East African Journal of Peace and Human Rights 307.
49 See nn 24 & 25 and accompanying text.
50 Art 26(2)(b)(ii) of the Constitution states: 'No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied: ... (b) the compulsory taking of possession or acquisition of property is made under a law which makes provision for - .... (ii) a right of access to a court of law by any person who has an interest or right over the property.'
51 See the Thomas Ochieng case (n 23 above) 5.
52 See nn 46 & 47 and accompanying text.
53 n 18 above, 2 (complainant as the father of deceased son, Robert Okullo).
54 n 16 above, 2-3.
55 Complaint UHRC G/172/2001 (decision of 23 February 2004).
56 n 55 above, 1.
57 n 15 above, 11.
58 See eg the Margaret Atoo case (n 15 above) (wife to Philip Odong); the Peace Nshem-ereirwe case (n 15 above) (sister to Patrick Mamenero); the Lydia Nabuwembo case (n 15 above) (sister to John Lubega); the James Bwango case (n 15 above) (husband to Margaret Barungi); the Leo Rusoke case (n 15 above) (son to Gabriel Byaruhanga); the John Baptist Oryem case (n 15 above) (father to Walter Ocen).
59 See eg the Joseph Oryem case (n 15 above). Commissioner Waliggo alludes to the allegation in the complaint in respect of 'Thomas Kilama's right to life' as 'violated by the respondent's security agents'.
60 n 21 above, 4 15.
61 n 21 above, 16.
62 n 21 above, 17-18.
63 See eg Leonard Mugerwa v Attorney-General, Complaint UHRC 41/2003 (decision of 8 December 2006); Sulaiman Kakomo v Attorney-General, Complaint UHRC 388/2002 (decision of 5 September 2007); Sam Opio Etimu v Attorney-General, Complaint UHRC S/438/2004 (decision of 1 November 2007); Edison Oluka v Attorney-General, Complaint UHRC S/61/2005 (decision of 2 November 2007).
64 See eg the Jervasio Atunya Onek case (n 55 above) 1-2 (son-in-law Thomas Orach Otim was arrested and detained by armed forces). See also n 84 below and accompanying text.
65 See eg Daudi Kauta (as a friend of George Kauta) v Ishaka Magemeso & Others, Complaint UHRC 180/1998 (decision of 19 April 1999).
66 UHRC Rules (n 4 above), Rule 11(2).
67 In the Jervasio Atunya Onek case, Commissioner Aliro-Omara observed, in substituting the author of the complaint with his son-in-law: 'Procedurally the tribunal felt it appropriate to replace Onek Atunya with Orach Otim Thomas as the complainant as in the case of success of the complaint any remedies applicable would go to Mr Orach Otim. Such substitution is allowed by Rule 11(2) of the Uganda Human Rights Commission (Procedure) Rules 1998' (n 55 above) 46 1-2 (my emphasis). Although in that case the complaint remained in the names of Jervasio Atunya Onek (the father-in-law), in other cases the Commission has in fact replaced the name of the author of the complaint with that of the victim. See eg Sgt Jackson Cherop v Attorney-General, Complaint UHRC G/288/2000 (decision of 14 April 2004) (complaint originally filed by Jimmy Kipsiwa on behalf of his brother, Jackson Cherop); Peter Isabirye Kiwule v Attorney-General, Complaint UHRC J/35/2003 (decision of 3 December 2004) (complaint originally filed by Rev Grace Kayiso on behalf of his brother, Peter Isabirye Kiwule); Paul Waiswa v Kamuli District Local Administration, Complaint UHRC J/34/2002 (decision of 21 April 2006) (complaint originally filed by Jackson Muganza on behalf of his son, Paul Waiswa). All these cases were handled by Commissioner Aliro-Omara.
68 n 15 above, 11-12. In the Kamana Wesonga case, the Commissioner similarly endeavoured to de-link the complainant's presentation of the complaint from the question of proof of dependency, in stating that: '[I]t is necessary to adduce evidence before the Commission proving the existence and status of the dependants of Pongo. This in my view may be at any stage of resolving the complaint because there is no strict legal requirement that they must be produced at the time a complainant testifies.'
69 Complaint UHRC G/283/2003 (decision in 2007).
70 n 69 above, 3.
71 n 5 above, Guideline 4, 'Who can make a complaint?' provides: '(a) the victim of an alleged human rights violation; (b) a relative, friend, legal representative, any organisation or person may make a complaint on behalf of the alleged victim. This should particularly be so if, for some reason, the victim cannot personally make the complaint; (c) an individual or organisation alleging with facts a series of massive violation of human rights or peoples' rights; (d) any person may complain before the UHRC not only on his/her own behalf, but also on behalf of others who are also similarly affected by the act he/she is complaining about. This will be known as "representative complaint".' As of 2008, the only instance of a 'representative complaint' is the complaint presented in the Kalyango Mutesasira case (n 9 above).
72 Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72 (Laws of Uganda 2000), sec 3.
73 n 3 above, sec 24.
74 Margaret Atoo case (n 15 above) 1. Commissioner Aliro-Omara noted that the complaint filed on 7 April 2000 (almost four years after the human rights violation) was 'within the limitation period of five years prescribed by the UHRC Act'. See also the Peter Amone case (n 23 above) 7-9 (although in this case, there was a 'continuing violation' in respect of occupation of land dating back to 1989).
75 n 30 above, 4. In the end, the Commissioner held: 'The alleged violation of the complainant's rights occurred between June 17, 2002 and July 9, 2002. His complaint is therefore not time-barred.'
76 n 18 above, 5 (my emphasis).
77 Complaint UHRC G/205/2001 (decision in 2006).
78 n 77 above, 1.
79 As above.
80 n 77 above, 14.
81 n 77 above, 3.
82 n 21 above, 4. The Commissioner stated: '[E]ven if the instant complaint involved any human rights violation other than death, it would still be statute-barred as against the Attorney-General.'
83 n 21 above, 4. The deceased, Tom Owenykeu, was shot dead by a member of the local defence forces, a paramilitary force, on 7 December 1996 and the complaint was filed before the Commission on 4 December 2000.
84 n 21 above, 3.
85 As above.
86 n 21 above, 13.
87 n 77 above, 2.
88 Collins Oribi case (n 21 above) 6-13.
89 See n 76 above and accompanying text.
90 n 72 above, sec 2.
91 See eg Dr James Rwanyarare & Others v Attorney-General, Miscellaneous Application 85/1993; Oketcho v Attorney-General, Miscellaneous Application 124/1999; The Environmental Action Network Ltd v Attorney-General & Another, Miscellaneous Application 39/2001; Greenwatch v Attorney-General, Miscellaneous Application 92/2004. All the applications were filed and presented before the High Court.
92 n 21 above, 4-5.
93 A good number of the early complaints were heard before two or more commissioners. See eg the Free Movement case (n 39 above); the Betty Nakiyingi case (n 38 above); Emmanuel Mpondi v Chairman, Board of Governors, Nganwa High School & 2 Others, Complaint UHRC 210/1998; James Hafasha v D/SP John Bwango, Complaint UHRC 335/1998.