Abdunaafi Bbaale v Attorney General (Complaint UHRC 75 of 2009) [2016] UGHRC 2 (10 November 2016)


# THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION AT KAMPALA

## COMPLAINT No. UHRC 75/2009

ABDUNAAFI BBAALE..................................

### $-$ AND-

ATTORNEY GENERAL RESPONDENT

#### **DECISION**

The Complainant brought this complaint against the Respondent seeking general damages for torture, cruel, inhuman and degrading treatment.

The Complainant alleged that on 19<sup>th</sup> January 2008 at around 5 pm while in his ward at Mutukula Prison where he was serving his sentence, he was severely beaten with a stick on the lower abdomen by a prison wardress, Betty Achen. The Complainant further alleged that as a result of the beating he started urinating blood and his male organ no longer functions. The complainant seeks compensation.

#### Issues.

The issues for determination before this tribunal are.

- 1. Whether the Respondent's servants violated the Complainant's right to protection against torture, cruel, inhuman and degrading treatment; - 2. Whether the Complainant is entitled to the remedies sought.

Before resolving the above issues, It should be noted that under

Section 101 (1) of the Evidence Act, Cap. 6 Laws of Uganda provides:

"Whoever desires any court to give judgment as to any legal right or liability over the existence of facts which he or she asserts must prove that those facts exist."

And under Section 102 of the Evidence Act (Supra):

"The burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all were given on either side."

I now turn to the issues.

Issue 1.

Whether the Respondent's servants violated the Complainant's right to protection against torture, cruel, inhuman and degrading treatment.

(UDHR), 1948 under Article 5 The Universal Declaration of Human Rights provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1996 absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

The African Charter on Human and Peoples' Rights (ACHPR) 1981 under Article 5 also reiterates the total prohibition of violation of the same aforementioned right.

The Constitution of the Republic of Uganda 1995 under Article 24 also absolutely prohibits subjection of anyone to any form of torture or cruel, inhuman and degrading treatment or punishment. This right is provided for as a non derrogable right under **Article 44**.

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until September 18 2012 upon the commencement of the Prevention and Prohibition of Torture Act 2012. The definition is provided by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, which Convention Uganda ratified.

$\overline{3}$

**Article 1** there of states that.

"... torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. The definition in Article 1 of the CAT has been applied in Uganda in the matter of **Fred Tumuramye** $V^s$ GeraldBwete and Others UHRC NO 264/1999, where Commissioner Aliro Omara spelt out the elements of torture as follows;

- a) An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person. - b) For a purpose such as obtaining information, or a confession, punishment, $\frac{b}{b}$ intimidation, coercion or for any reason based on discrimination. - c) The act is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

$\overline{4}$

The Complainant **CW1**, testified that in 2007 he was convicted and sentenced to 18 months in prison. On 18<sup>th</sup> January 2008, while in his ward resting on his bed, he was hit on his private parts about 5 times through the window by the wardress Betty Achen while demanding for a bucket the prisoners were using to ease themselves. That he reported to the Officer in charge of the Prisons but nothing was done but instead he was told to keep going to work in the field until he finishes his sentence. That upon his release on $18<sup>th</sup>$ February 2008 he went to Lyantonde Medical Centre for treatment

During cross examination, the Complainant stated that he did not have any medical evidence to prove torture allegations or his impotence.

The Complainant did not call any other witness. Efforts were made by the Commission to summon the witnesses but they failed to appear and testify. The Complainant opted that the Tribunal considers his testimony alone.

The Respondent called one witness Betty Achen who confirmed that she knew the Complainant and that he was indeed serving a sentence at Mutukula Prison in 2008. She testified that on 19<sup>th</sup> January 2008, she was deployed at Boma Courtyard and one of the inmates complained that they had no bucket for urine in their ward. That she moved around and through the window she discovered that there were three buckets in the Complainant's ward. That when she told them to surrender one bucket, they refused and insulted her. She left and

$\mathsf{S}$

reported the matter to in-charge shift Sgt Olinga and officer in charge Mr. Byamugisha Frank. She denied the torture allegations put by the Complainant and stated that according to the structure of the facility it was impossible for her to have tortured the Complainant through a window that had a wire mesh. She also denied the fact that the Complainant was not given medical attention and that on 25<sup>th</sup> January 2008, the Complainant complained of malaria and was treated. Medical notes dated 25<sup>th</sup> January 2008 were admitted in evidence and marked as Exhibit D1.

The defence witness further testified that the Complainant while in prison assaulted a fellow inmate and he was brought before disciplinary committee on 29<sup>th</sup> January 2008. Disciplinary record of proceedings was admitted and marked as **Exhibit D2**. It was further brought to the Tribunal's attention that the Complainant was previously charged and convicted on three occasions for stealing cattle. That he also filed a case at the Uganda Human Rights Commission, Masaka Regional Office against the officers at Kyazanga Prison in 2014 after serving a different sentence.

The defence witness was cross examined by the Complainant and her evidence was neither inconsistent nor contradicted.

The Respondent called no other witness and the matter was on $2^{nd}$ September 2014 closed for submissions which were never filed to date.

$\mathbf{6}$

With the evidence produced in the Tribunal, the character of the Complainant was brought in issue and was found to be untruthful.

The Complainant's allegations were not substantiated due to the absence of a medical report. Furthermore, the Complainant's evidence was never corroborated by any other independent evidence.

The evidence of the defense witness was more capable of belief than the Complainant's evidence.

It is the considered view of this Tribunal that the Complainant has failed to make out his case of torture, cruel, inhuman and degrading treatment. There is insufficient evidence on record to sustain the Complainant's claim.

Wherefore I find on a balance of probabilities, and hold that the Respondent did not violate the Complainant's right to protection from torture, cruel, inhuman and degrading treatment.

The Complainant is therefore not entitled to any legal remedy from the Respondent and I hereby dismiss his complaint.

#### ORDER.

- 1. The complaint is dismissed. - 2. Each party to meet their own costs.

3. Either party may appeal to the High Court of Uganda within thirty (30) days from the date of this decision if not satisfied with the decision of this Tribunal.

So it is Ordered.

10<sup>th</sup> DAY OF November 2016 DATED AT KAMPALA ON THIS...

$\cdots$ Hon. (Rtd.) Justice Gideon Tinyinondi

Presiding Commissioner