Personal liability versus vicarious liability for human rights violations

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OPINION

By Adv. Mariam Wangadya

Recently, the Chief Magistrates’ Court in Iganga ordered a senior policewoman to pay sh40m to two court officers for illegally detaining them for five hours at Namutumba Police Station, which he termed arbitrary and as “excesses by people in authority”.

First of all, the compensation of sh40m was not commensurate with the purported wrong. Secondly, there was no actual wrong committed by this law enforcement officer.

The detention, though perhaps irregular, was not illegal in the sense that as a police officer, she was clothed with the authority to arrest and detain persons suspected of committing an offence for not more than 48 hours, after which they must be released or charged in accordance with the Constitution.

However, without delving too much into the discretion of the judicial officer, of more concern to me is this growing trend of holding employees individually liable for acts committed in the course of their employment. In an attempt to embrace what are perceived as more progressive laws, we appear to be discarding the principle of vicarious liability.

This principle not only protects employees from retribution for acts of good faith done in the course of employment, but under the deep pocket theory, it also ensures that victims who suffer harm at the hands of an employee in the course of his employment are able to receive compensation that is fair and adequate.

Laws such as the Human Rights Enforcement Act (HREA) are often hailed by human rights activists as progressive and deterrent for, among other things, introducing personal liability for alleged human rights violations.

However, this position in my view is more harmful than helpful and ought to be revisited.

It has been more than 10 years since the HREA was enacted, and now is the time for it to be urgently reviewed, or else we face anarchy and lawlessness.

The Ministry of Justice and Constitutional Affairs should initiate the necessary Bill for this purpose. The purpose of a civil action is to restore an aggrieved party to the situation they were in before the wrong they suffered was done.

The primary purpose of civil actions is compensation, not punishment. That is why there are provisions for different kinds of damages such as special damages, which enumerate actual monetary loss suffered, as well as general damages. Punitive and exemplary damages will only be awarded in the most deserving of cases.

Not only do laws such as the HREA have the adverse effect of demoralising well-intentioned law enforcement officers from taking necessary and decisive action against offenders, but they also fail to take cognisance of the context within which law enforcement operates in developing countries like Uganda.

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. Challenges such as lack of vehicles to transport suspects, lack of office supplies, lack of fuel, and the shortage of resident state attorneys, among others, compound human rights concerns such as detention beyond 48 hours and the detention of juveniles together with adults.

To hold individual officers responsible for systemic challenges is not only unfair, but retrogressive.

We are likely to have more unresponsive law enforcement officers, unwilling to act or intervene in crime scenes to prevent escalation or mob action against suspected offenders, for fear of being held personally liable for their intervening acts. This will, in turn, increase the level of crime and insecurity in communities.

The over-policing of the Police is already having such adverse effects in developed societies like the US, where there are fewer people willing to join the police.

The principle of vicarious liability recognises that an employee acts professionally on behalf of the employer. The only reason this employee has the authority and tools of work they have is to act on behalf of the employer.

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.

In the meantime, I wish the successful party good luck in enforcing their judgment decree against a policewoman who barely earns sh300,000 a month. I am aware that there are moves by certain judgment creditors to recover the compensations from the pension of these officers upon their retirement.

Not only is this a very unfortunate way to thank our men and women in uniform for the sacrifices that they make, but it is also absurd that you would wait for an officer who has spent a lifetime in public service, at great pains, to retire to a small pension for a wrong committed maybe 20 years ago as a junior officer. We owe our law enforcement officers better because, without the sacrifices they make every day, we cannot enjoy any of the human rights that we treasure so much.

The writer is the chairperson of the Uganda Human Rights Commission