Onzivua loses petition to claim damages in Nebanda case
Dr Sylvester Onzivua
What you need to know:
- Dr Onzivua was in 2012 charged with offences of abuse of office contrary to section 1 1 (1) of the Anti-Corruption Act and conspiracy to commit a felony contrary to Section 390 of the Penal Code Act but he was acquitted of both offences.
The Constitutional Court has dismissed a petition in which pathologist Dr Sylvester Onzivua was challenging the two-year timeframe provided under the law to sue the government for any claim, citing lack of merit.
Dr Onzivua was in 2012 charged with offences of abuse of office contrary to section 1 1 (1) of the Anti-Corruption Act and conspiracy to commit a felony contrary to Section 390 of the Penal Code Act but he was acquitted of both offences.
In 2016, Dr Onzivua fi led the petition challenging the legality of section 3(1) (a) of the Civil Procedure (Miscellaneous Provisions) Act. The Act provides for two years within which a person can sue the government for damages arising out of arrest, and imprisonment following the disputed post-mortem test of former MP Celina Nebanda.
However, Dr Onzivua had taken close to three without instituting action against the government. The petition resulted from an objection by the Attorney General against his 2015 claim that the State unlawfully arrested, detained and maliciously prosecuted him.
In his petition, Dr Onzivua had claimed that section 3(1) (a) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72 provides for special treatment for the State over citizens, is no longer good law and should be taken in conformity with Article 274 of the Constitution But in their unanimous decision, a panel of five justices ruled that there was no violation of any of the constitutional provisions that were invoked in his petition.
The judges were Barishaki Cheborion, Catherine Bamugemereire, Irene Mulyagonja, Monica Mugenyi, and Christopher Gashirabake. In the lead judgement, Justice Mugenyi held that Dr Onzivua’s case which is pending before the High Court was not instituted under the Human Rights (Enforcement) Act so as to benefit from the 10-year limitation period prescribed under Section 19 of that Act.
She observed that Section 20 of the Human Rights Act, which provides for the transfer of pending cases, the hearing of which has not commenced, would not save Dr Onzivua’s case either given that the hearing of his had commenced as at April 25 2016, when the preliminary objection that underpins this Reference was raised.
“Consequently, the petitioner cannot benefit from the limitation period prescribed under Section 19 of the Human Rights (Enforcement) Act. I find nothing unjust or illegal about that eventuality given the non-provision in the Act for its retrospective application,” the judge ruled.
The court ruled that Articles 23(1) and (7) and 29(2)(a) and (b) of the Constitution have no connection with the question raised for interpretation regarding the constitutionality of a differential limitation period between the State and private persons. Dr Onzivua had invoked the articles to relate to the merits of his claim in High Court on the right to personal liberty.
Justice Mugenyi agreed with the state lawyers that the government cannot be classified as a person for purposes of Article 21(1) of the Constitution. Dr Onzivua was in 2012 intercepted at Entebbe airport on his way to South Africa before being charged with abuse of office and conspiracy to unlawfully obtain body parts of Nebanda. He was later acquitted.
