The Court of Appeal in Kampala has ordered a retrial of a case in which a widow is seeking compensation from the government for the death of her husband at the hands of the Joint Anti-Terrorism Task Force (JATT).

Sumaiya Saidi Lutaaya in an appeal filed in 2014, asked the first appellant court to overturn the ruling of High court judge Benjamin Kabiito who dismissed her case filed in 2010 in which she wanted the government to compensate her for the death of her husband Saidi Lutaaya who was allegedly kidnapped by JATT and tortured to death.

According to court filings, Lutaaya was abducted and tortured on November 21, 2007, by men in civilian clothes driving a white saloon car, registration no. UAJ 485V while he was doing general business at the Old Taxi Park in Kampala. The men who abducted him, allegedly beat and tortured him in the car as they drove off to JATT offices in Kololo where it is alleged that he was further badly tortured again.

According to an affidavit by Sabiiti Kateregga, who was also allegedly tortured at the JATT offices, he witnessed Lutaaya being taken in and that he heard his cries for mercy in the next room. The affidavit also states that Kateregga and some other detainees were also asked to carry Lutaaya onto a pickup with his body bleeding and full of torture hallmarks.

Sumaiya in her affidavit in support of the motion challenging the High court’s ruling says, on November 23, 2007, she was informed by her brother that he heard a radio announcement calling upon the relatives of Saidi Lutaaya to go and pick up his dead body from Mulago hospital mortuary.

When Sumaiya went to the mortuary, a nurse informed her that her husband’s body was brought in by people dressed in full military combat uniform. However, the body was never given to her and therefore never buried. Later in 2008, she was given a death certificate.

In her High court case seeking compensation, Sumaiya claimed that the death of her husband robbed her family of support since he was the breadwinner who left behind orphaned children, Ashraf Kivumbi, 14, Aisha Nambatya, 12, Nurdin Semwanga, 10, Osama Senkuba Saidi, 7 and Nusaiba Lunkuse aged 6 and therefore she was entitled to compensation from the government.

However, the High court dismissed her case with the judge ruling that court wouldn’t rely on the affidavit of Kateregga because he never availed himself for cross-examination. In her appeal, Sumaiya based on eight grounds to ask the court to overturn the ruling of justice Kabiito.

She said that the judge; erred in law and fact when he put the standard of proof to a level beyond a reasonable doubt when he found that the death of the subject of the application had not been proved on the balance of probabilities. The judge ruled that the respondent’s agents had not been proved as the cause of death of the subject of the application after he struck out the affidavit of Sabiiti Kateregga without hearing all the evidence first.

Further, she says the judge failed to find that the state did not discharge its obligation under Article 20 (1) of the Constitution in accounting for the death or otherwise of the subject of the application when he found that the appellant’s pleading that the state ignored the order of inquest was irrelevant. According to her, the state’s failure to obey the order of inquest was prima facie evidence that the state agents killed the deceased.

She was represented by Stella Nakamya of Rwakafuuzi & Co. Advocates while the attorney general was represented by Wanyama Kodolo, the principal state attorney. In the lead judgment written by Catherine Bamugemereire, the court held that it was wrong for Kabiito to expunge from the court record the affidavit of Kateregga based on procedural grounds of not being available for cross-examination.

“The protection of persons who have been victims and witnesses to torture is a duty that touches upon a non-derogable right and should never be taken lightly. In this case, nowhere on the record do we see the state carrying out its statutory duty to protect a witness who was also a victim of torture. On the contrary, the respondent’s submission is dismissive, majors on minor issues, and creates issues out of non-issues.

Bamugemereire, added, “It should be recalled that the appellant brings this matter as a bereaved, unsophisticated widow who cries out over the suspicious disappearance and death of her husband. Rather than get the requisite attention worthy of such a serious issue she witnessed a flippant and un-empathetic respondent’s counsel who spent a lot of time making light of otherwise grave allegations,” court held.

The judges added that the High court should have given a more affirmative approach to witness protection rather than dismissively mentioning it in passing and siding with the respondent without fully granting the appellant a right to be heard.

“Every case has its own peculiar facts that make it distinct. First, Sabiiti Kateregga had already disclosed his identity as a witness in his affidavit. The possibility of intimidation and witness interference could not be easily ruled out. Secondly, Sabiiti had himself, been a victim of torture by what he believed was the respondent’s agents. Once beaten twice shy. Given the above facts, I am of the view that witness protection is a critical factor in such cases and the learned trial judge should not have merely struck out the affidavit for procedural irregularities without investigating the matter fully,” they ruled.

Having ruled that striking out the affidavit of Kateregga amounted to a miscarriage of justice, Bamugemereire ordered the retrial of the case in the High court so that it is determined on its merits. The other judges who agreed with Bamugemereire’s ruling are Elizabeth Musoke and Steven Musota.

Story Credit: The Observer