Case Title: Namale Desire & Muyingo Mutasa Charles v Horeb Services Uganda Limited & Ezra Mugisha
Court: High Court of Uganda, Civil Division
Judge: Hon. Justice Boniface Wamala
Decision Date: 7 October 2024
Case Number/Citation: Miscellaneous Cause No. 0021 of 2023 [2024] UGHCCD 152
Topics: Employer Liability for Externalised Workers, Human Rights and Employment Law, Access to Information and Failure to Inform, Right to Life and Responsibility of Recruitment Agencies, Tortious Liability for Negligence in Migrant Worker Contracts
Summary of Facts:
The applicants, Namale Desire and Muyingo Mutasa Charles brought this application following the death of their relative, Milly Namutamba, who was recruited by Horeb Services Uganda Ltd (the 1st Respondent) to work as a domestic worker in Saudi Arabia in August 2018.
The applicants claimed that after constant communication, Namutamba went silent.
Despite multiple attempts over the following years to obtain information from the respondents, they were unable to confirm her fate.
In September 2022, they learned that Namutamba had died in January 2019 and was buried in Saudi Arabia without the family’s knowledge or consent.
The applicants sought declarations that the respondents violated the deceased’s rights to life, dignity, and freedom from inhuman treatment, as well as the applicants’ right to information.
They also sought general damages for the death of Namutamba, punitive damages, and an order for the return of her remains.
The respondents denied any responsibility for Namutamba’s death, arguing that her employer in Saudi Arabia bore the responsibility for her welfare and compensation.
Issues Before the Court:
- Locus Standi – Whether the applicants, especially the 2nd Applicant (deemed distant relative) had the right to bring this application.
- Cause of Action – Whether the applicants had a valid claim against the respondents.
- Infringement of Rights – Whether the respondents infringed on the rights of the deceased and the applicants.
- Entitlement to Remedies – Whether the applicants were entitled to the declarations and damages sought.
Court’s Decision:
Issue 1: Locus Standi
The court held that under Article 50(2) of the Constitution of Uganda and Section 3 of the Human Rights (Enforcement) Act, 2019, any person may bring an action for human rights violations, regardless of the degree of relationship to the victim.
The 2nd applicant, although a brother-in-law to the deceased, had sufficient standing to bring the claim, as human rights enforcement actions do not require a direct or contractual relationship.
- Decision: The applicants had locus standi to bring the application.
Issue 2: Cause of Action
The court ruled that the traditional elements of a cause of action—such as having a right, that right being violated, the defendant being responsible —are interpreted differently in the context of human rights enforcement given the broader scope of litigation conferred by Article 50 (2) of the Constitution.
The applicants need not show personal injury or direct harm but must demonstrate that they are bringing the action to protect rights that have been violated or threatened. The applicants therefore only need to fit their claim within the constitutional provisions or the Human Rights (Enforcement) Act.
The court found that the recruitment of migrant workers is governed by the Employment (Recruitment of Ugandan Migrant Workers) Regulations, 2005, which place full responsibility on the recruitment agency for the safety and welfare of the externalised worker. Horeb Services, as the recruiting agency, had a legal obligation to protect the deceased’s rights and enforce the contract on behalf of the worker. The respondents’ argument that the family should have pursued compensation from Saudi Arabia was rejected.
- Decision: The court ruled that the applicants had a valid cause of action against the respondents.
Issue 3: Infringement of Rights
- Right to Life: The court found that Horeb Services violated Namutamba’s right to life by failing to ensure her safety and by operating outside the official tracking system for migrant workers, which made it impossible for authorities to monitor her condition. The court noted that the respondents’ failure to act in time and failure to ensure her welfare contributed to her death.
- Right to Dignity and Freedom from Inhuman Treatment: The court dismissed this claim, finding no evidence of inhuman or degrading treatment before Namutamba’s death. The right to dignity was not found to extend posthumously in this context.
- Right to Access Information: The court ruled that the right of access to information under Article 41 of the Constitution applies only to state entities, not private companies like the respondents. Therefore, this claim failed.
- Decision: The court held that the respondents violated Namutamba’s right to life but dismissed the other claims.
Issue 4: Remedies
The court awarded the applicants UGX 200,000,000/= in general damages for the death of Namutamba, recognizing the pain, mental anguish, and inconvenience caused by the respondent’s negligence.
Additionally, UGX 50,000,000/= in exemplary damages was awarded to punish the respondents for their conduct, which the court found to be profit-driven.
- Decision: The court awarded both general and exemplary damages but declined to order the return of Namutamba’s remains, as their location was unknown.
Ratio Decidendi:
The court’s decision was based on the principle that under human rights enforcement, anyone can bring an action alleging infringement of another’s human rights or a group’s and that recruitment agencies bear full responsibility for the safety and welfare of migrant workers under Ugandan law. By operating outside official tracking systems and failing to monitor Namutamba’s condition, the respondents were found negligent and directly responsible for her death.
Key Quote:
“In an application for human rights enforcement, the elements of a cause of action as traditionally known are not to be considered in the same way. Provided the action fits within the ambit of Article
50 of the Constitution and the provisions of the Human Rights (Enforcement) Act, such would suffice to disclose a cause of action.” – Justice Boniface Wamala
Counsel for the Parties:
- For the Applicants: Ms. Rose Wakikona (The Women’s Pro Bono Initiative)
- For the Respondents: Mr. Ferdinand Tumuhaise (Kampala Associated Advocates)
Author’s Comment:
This case sets a significant precedent regarding the liability of recruitment agencies for the safety of externalised workers. It emphasizes the importance of adhering to legal frameworks and monitoring systems for migrant workers, holding agencies accountable for their obligations under the law. It also clarifies the application of human rights laws in cases involving private entities.
Benjamin Ahikiiriza is a legal writer and publisher of the Legal Reports Digital Media.