Achedu Peter & Others v Attorney General (Complaint UHRC 172 of 2007) [2024] UGHRC 3 (26 June 2024)

Full Case Text

![](_page_0_Picture_0.jpeg)

THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **HOLDEN AT SOROTI**

## COMPLAINT NO. SRT/172/2007

| 1. ACHEDU PETER | | | |--------------------|----------|---------------------| | 2. OMOLO ANTHONY | | | | 3. ATIM DEMETERINA | $\cdots$ | COMPLAINANTS | | 4. OKEJU YAFESI | | | | 5. AMUGE JANET | | | | 6. OSUKU MOSES | | |

#### -AND-

**RESPONDENT** ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

## **BEFORE:**

- 1. HON. MARIAM WANGADYA - 2. HON. COL. (RTD.) STEPHEN BASALIZA **COMMISSIONER** - 3. HON. CRISPIN KAHERU - 4. HON. JACKLET ATUHAIRE **RWABUKURUKURU**

**COMMISSIONER**

**CHAIRPERSON**

# **DECISION**

This complaint was initially brought by 8 people. Besides the 6 people hereinabove mentioned, the other 2 were Aseu John Bosco and Oyalo Ben. At the commencement of the hearing of the complaint, Ms.

Chelimo Florida Chebet, learned Counsel for the Commission informed the tribunal that "Aseu, through his assistant Emaru Joseph, says he is of unsound mind". It was ruled by the presiding Commissioner, Hon. Meddie Mulumba, that Aseu was incapable of testifying. In the absence of any testimony from Aseu, he cannot be retained as a complainant in this case.

Ms. Chebet further informed the tribunal that Oyalo Ben was deceased. She attempted to "replace" him with his wife Acham Betty and his brother, Edoru Charles as complainants. This was a bizarre twist as personal pain and injury is not transferable to another person. Indeed Acham Betty and Edoru Charles did not testify at all as they had no cause of action against the respondent. They accordingly, are not party to this complaint.

The complainants sought compensation from the respondent for alleged violation of their rights to personal liberty, and protection from torture, cruel, inhuman and degrading treatment.

The undisputed facts of this case are that around May 2007, one Enau Charles, a Uganda Peoples Defence Forces (UPDF) soldier went missing. His sister Amunyo Immaculate who was also the LC.1 Vice Chairperson of Aterai village reported the matter to Wera Police Post in Amuria District. She had a strong suspicion that her brother, Enau

$\overline{2}$

had been murdered and his body hidden by some people in Aterai and Oimai villages.

$\tilde{\mathcal{A}}$

On the advice of the Officer-in-Charge (O/C), Wera Police Post, on 9th June, 2007, a joint meeting of the two villages was held at Oimai presided over by the two Chairpersons of the said villages. Many people attended the meeting including the O/C, Wera Police post. The O/C Wera Police Post distributed empty pieces of paper to each person to write there names of the people they suspected to be involved in the disappearance of Enau Charles. The names which most people wrote down were those of the complainants. The O/C, Wera Police Post ordered their arrest. They were duly arrested and taken to Wera Police Post where they were detained for 2 days. They were later taken to Amuria Police Station where they were detained until 27th June, 2007 when they were released.

The complainants, with the exception of the 3rd complainant, Atim Demeterina, alleged that during their detention at Amuria Police Station, they were severely beaten by two Special Police Constables (SPCs) on the orders of Emadu Stephen, a UPDF Intelligence Officer. They said they were beaten to compel them to confess to the "murder" of Enau and reveal where his body was. The said Charles Enau later appeared on his own, alive and in good health.

It was contended by the complainants that the above alleged actions constituted violation of their rights to personal liberty, and freedom from torture, cruel, inhuman and degrading treatment. They further contended that throughout the material time, the O/C, Wera Police Post, the UPDF soldier, Emadu Stephen and the 2 SPCs were acting in the course of their employment as servants of government. They hold the respondent vicariously liable for their actions.

The respondent's representative, Mr. Eric Mukisa, denied liability.

#### $Issues:$

- 1. Whether the respondent's agents violated the complainants' right to personal liberty. - Whether the respondent's agents violated the $1^{st}$ , $2^{nd}$ , $4^{th}$ , $5^{th}$ and $6^{th}$ $2.$ complainants' right to freedom from torture, cruel, inhuman and degrading treatment. - $3.$ Whether the complainants are entitled to any remedy.

Before we resolve the above issues we have to put on record that the tribunal as currently constituted did not hear this complaint. Hearing was presided over by our former colleague Hon. Meddie Mulumba. This decision is based on his record of proceedings as it is.

We note too that although the respondent's representative, Mr. Eric Mukisa denied liability, and cross-examined the complainants, he did not present any witnesses in defence of the matter. On 19th August, 2019 when the case last came up for defence, Mr. Mukisa addressed the tribunal as follows:

"We do not have defence witnesses. We pray to file written submissions within 3 weeks".

The said written submissions were never filed. All the same, the complainants retained the duty to prove their case against the respondent on the balance of probabilities. Sections 101, and 102 of the Evidence Act, Cap 6 refer.

Back to the issues.

#### Whether the respondent's agents violated the complainants' 1. right to personal liberty

The right to personal liberty is protected by the Constitution of the Republic of Uganda (hereinafter referred to as 'the Constitution'), various regional and international human rights instruments, and the Law of Tort under the tort of False Imprisonment. Richard Clayton and Hugh Tomlinson in their book, the Law of Human Rights Vol.1 write as follows:

"The tort of false imprisonment is committed by someone who intentionally subjects another to total restraint of movement either

$\overline{5}$

by actively causing his confinement or preventing him from exercising his privilege of leaving the place where he is. Any interference with liberty is unlawful unless the person responsible for the imprisonment can show that it is justified".

All the complainants testified that they were arrested on 9th June, 2007 at the conclusion of the meeting at Oimai village. That they were detained in Police custody until 27th June, 2007 does not seem to be in dispute. Their testimonies before the tribunal, which matched their statements earlier made to the Commission investigator, then Celestine Alou, attest to this fact. The Lockup registers for Wera Police Post, and Amuria Police Station during the period in issue further attest to this. More so the DPC, Amuria (then), SSP Onencan Stephen, in his self recorded statement before Celestine Alou on 17th August, 2007 admitted to the arrest and detention of the complainants as alleged. So it is indeed true that the complainants were arrested and detained in Police custody for a total of 17 days.

What the complainants did not reveal in their evidence in chief, but which came out during their cross-examination by Mr. Eric Mukisa, learned Counsel for the respondent, is that the arrest and detention of the complainants by Police was intended to protect them from imminent lynching by an irate mob at Oimai, who wrongly believed that the complainants had murdered Enau. According to the statement of Senior Superintendent of Police (SSP) Onencan, they got

$\mathsf{6}$

intelligence information that the mob was due to storm Wera Police Post to lynch the complainants hence the decision to shift them to Amuria Police Station where there was better security.

With the exception of the 3rd complainant, Omolo Anthony, all the rest of the complainants said on cross-examination by Mr. Mukisa, that they would have been killed by the mob had Police not quickly taken them away from Oimai and put them under protective custody.

Achedu Peter said, "Police rescued us from people who were angry with us for alleged murder of Enau".

Atim Demterina said all the people in the meeting "voted" for them as the people who had "murdered" Enau. Mr. Mukisa asked her, "Did Police rescue you from the community?" To this she answered "yes".

Okeju Yafesi said that during that meeting they were almost lynched by the mob, and that Police rescued them.

Amuge Janet repeated what Okeju Yafesi had said.

From the evidence of all the complainants the community suspected them in particular to have murdered Charles Enau because they were the people who were seen with him last before his "disappearance". What made the community even more furious was that Charles Enau was a brother to the Vice Chairperson of Aterai village, Amunyo Immaculate. Stakes were very high.

From the statement of SSP Onencan Stephen, four days after detention of the complainants, he directed the O/C CID to release them but learnt that "the population never wanted them back". He added as follows:

"I consulted my bosses who advised me that we should not risk their lives by setting them free, but to first educate the public about the rights of the complainants, and update them on the investigations. I directed my District Criminal Investigations Department (CID) officer to handle".

The O/C CID did exactly that. He asked the area L. C leaders to mobilize members of the community who he addressed. Clement Egolet, the LC.1 Chairperson of Oimai village, in his 4th February, 2008 statement to the Commission investigator said in part:

"Police of Amuria brought them back and informed the community that investigations were continuing. They advised the residents not to harass the suspects. This came about as a result of threats by the relatives of Enau to avenge his alleged death".

Opio Peter, then Speaker of Wera Sub-County, in his 5th February, 2008 statement to the Commission investigator said in part:

"I recall receiving a request from the $O/C$ CID, Amuria to mobilize people for a meeting with detectives. This was about 2 weeks after their arrest. During the meeting, Police explained to the people that while investigations into the disappearance of Enau continued, they were considering releasing the suspects on bond, and that so far, no evidence linked them to the alleged murder. Three days after the meeting the suspects returned to the village".

$\hat{\mathfrak{q}}$

It would have been preferable for Commission Counsel to have on record the evidence of the District Police Commander (DPC), SSP Onencan Stephen, Clement Egolet, the Oimai LC.1 Chairperson, and Opio Peter, the Speaker of Wera Sub-County. We had to dig into the investigation report to study their statements as the only way of doing justice to both parties in this case. (Article $52(3)(c)$ of the Constitution refers).

Article $23(1)(h)$ of the Constitution provides for detention of any person, "as may be authorized by law".

Pursuant to the above Constitutional provision, S.24 $(1)(b)$ of the Police Act, Cap 303 provides as follows:

"A Police officer who has reasonable cause to believe that the arrest and detention of a person is necessary to prevent that person from suffering physical injury, may arrest and detain that person".

And under $S.24$ (2) supra:

"A person detained under Subsection 1 shall be released once the peril or risk of injury has been sufficiently removed".

The Police Act is silent on the specific timeframe within which to release a person detained under such circumstances. This was not by accident. Saving a human life is more important than binding the Police with artificial timelines.

Police of Amuria acted reasonably, in good faith and in accordance with the law by arresting and detaining the complainants until the threat they faced was diffused. The inconvenience they suffered in detention was nothing compared to saving their lives. From the statement of the DPC, SSP Onencan, the complainants were informed of the steps being taken by Police to pacify the environment before releasing them. Perhaps that explains why none of the complainants ever asked to be released. SSP Onencan and his team should be commended and not vilified for the arrest and detention of the complainants. To hold otherwise would be to send out a message that in future, Police must not intervene in situations where innocent citizens of Uganda may face imminent danger to their lives. This tribunal cannot act in such an absurd manner.

For the reasons herein aforesaid, we find on the balance of probabilities, and hold that the respondent's agents did not violate the complainants' right to personal liberty.

## Whether the respondent's agents violated the 1st, 2nd, 4th and $2.$ 5th and 6th complainants' right to freedom from torture, cruel, inhuman and degrading treatment

The term 'torture' is defined under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) 1984 as:

"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".

Torture is outlawed by Article 24 of the Constitution which provides:

"No person shall be subjected to any form of torture, cruel. inhuman or degrading treatment or punishment".

Torture is further outlawed by various regional and international human rights instruments to which Uganda is signatory.

Achedu Peter, Omolo Anthony, Okeju Yafesi and Amuge Janet all testified that while at Amuria Police Station they were subjected to severe beatings by 2 SPCs on the orders of Emadu Stephen, a UPDF Intelligence Officer, to compel them to confess to the alleged murder of Charles Enau, and show them where they had "buried" his body.

Achedu testified as follows:

"A soldier called Emadu came and said I want people from Wera to get out. They took us behind the cells and 2 SPCs and Emadu started beating us. We were beaten on the head, ribs and legs. We were beaten for about one hour and a half"

On cross-examination by Mr. Eric Mukisa, Achedu said he was beaten all over the body.

Omolo Anthony testified as follows:

"Emadu Stephen came and asked the Policemen on duty to call us out. Then Emadu showed us a photograph and asked us if we knew the person in the photograph. We said that was Enau".

He said Emadu and 2 SPCs ordered them to lie down and they started beating them. On cross-examination by Mr. Eric Mukisa, learned Counsel for the respondent, Omolo said that they were beaten on 18th June, 2007.

Okeju Yafesi testified in part:

"Emadu came and ordered the Policemen to get us out. He was holding Enau's photograph. He told us to produce Enau and if we had killed him, to show him his body. He ordered us to lie down and they started beating us. I was seriously beaten all over the body until I collapsed and was taken to hospital. I regained consciousness while in hospital".

All the complainants said both in their statements to the investigator, and their testimonies before the tribunal that the person who was beaten most severely was Okeju. His testimony was consistent with what they said.

Amuge Janet said that she was a "medicine woman". She testified in part as follows:

"Emadu slapped me asking that I produce the money I got from selling Enau's head, heart and testicles... 3 people beat us; 2 SPCs and Emadu. They beat us on the back and other parts of the body".

The complainants adduced medical evidence to support their case that they were tortured by the respondent's agents. But a look at their medical examination documents shows that all of them were examined on 19th July, 2007, at least a month after the said torture. Most of their reports indicate findings of bruises on their bodies. Okeju did not present his admission or discharge forms from Amuria Hospital.

It is our considered view that it would have been near to impossible to detect bruises on the complainants' bodies more than 30 days after they were inflicted on them. We therefore take a decision to disregard the medical evidence. In any case, it is not a requirement of the law that every case of torture must be supported by medical evidence. The Court of Appeal guided in **Paul Wanyoto v Sgt Oumo and Attorney General** Court of Appeal Case No. 91 of 2021 that the requirement for medical evidence to prove torture has no legal basis.

The testimonies of each complainant rhymed with the testimonies of the others'. They were also consistent with their statements to the investigator.

We also note that the District Police Commander (DPC), Amuria, SSP Onencan in his self-recorded statement of 17th August, 2007 admitted the torture of the complainants at Amuria Police Station. He wrote in part:

"The alleged torture was done by 2 SPCs on the influence of one Intelligence Officer of UPDF based at Soroti. When it was realized, the $O/C$ Station opened a case against the 3 men which is being investigated".

We are satisfied that the 1st, 2nd, 4th and 5th complainants have proved their case against the respondent that they were tortured by the All the ingredients of torture were proved. respondent's agents. Emadu Stephen, a UPDF soldier together with 2 SPCs of Amuria Police Station severely beat the 1st, 2nd, 4th, 5th and 6th complainants. They beat them to compel them to falsely admit that they had killed Charles Enau.

Wherefore, we find on the balance of probabilities, and hold that the respondent's agents violated the $1^{st}$ , $2^{nd}$ , $4^{th}$ , $5^{th}$ and $6^{th}$ complainants' right to protection from torture, cruel, inhuman and degrading treatment. Throughout the material time they were acting in the course of their employment as servants of the state. We hold that the respondent is vicariously liable for their wrongful actions.

## $3.$ Whether the complainants are entitled are entitled to any remedies

The respondent did not violate any of the $3rd$ complainant's (Atim Demeterina) human rights. She is therefore not entitled to any remedy from the respondent.

The rest of the complainants having proved that the respondent's agents violated their right to protection from torture, are entitled to compensation by way of general damages. Articles 50 and $53(2)$ of the Constitution refer.

In arriving at the quantum of damages to be awarded to each complainant, we will consider that the right to protection from torture. cruel, inhuman and degrading treatment is an absolute right under Article 44(a) of the Constitution. Under no circumstances whatsoever can this right be taken away.

It was a total contradiction that the same people who had been rescued from physical harm by an irate mob at Oimai, were beaten so severely by their "liberators". The complainants suffered severe physical pain and mental agony, more so, since the person they were accused of murdering, Enau Charles, was under self imposed hiding. This is the man whose dead body or grave Achedu, Omolo, Okeju and Amuge were ordered to show Emadu. The complainants faced a total nightmare!

All the complainants stated that Okeju suffered special brutality at the hands of Emadu and the 2 SPCs. Why, it was never disclosed. They beat him until he collapsed, defecated and lost consciousness.

The actions of Emadu Stephen and the 2 SPCs were oppressive, cruel, sadistic, dehumanizing, arrogant, reckless, wanton and criminal.

In consideration of all the above circumstances, we consider U. Shs.10,000,000 (Ten Million Shillings) adequate compensation to Okeju Yafesi. We so award. We consider U. Shs.5,000,000= (Five Million Shillings) adequate compensation to each of the other complainants - Achedu Peter, Omolo Anthony, Amuge Janet and Osuku Moses. We so award.

## **ORDER:**

- The 3rd complainant's (Atim Demeterina) complaint is dismissed. $1.$ - Achedu Peter, Omolo Anthony, Okeju Yafesi, Amuge Janet and $2.$ Osuku Moses' complaint is allowed in part. - The respondent is ordered to pay the 4th complainant, Okeju Yafesi $3.$ U. Shs.10,000,000= (Ten Million Shillings) as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment.

- The respondent is ordered to pay the 1st complainant Achedu Peter $4.$ U. Shs.5,000,000= (Five Million Shillings) for violation of his right to protection from torture, cruel, inhuman and degrading treatment. - The respondent is ordered to pay the $2nd$ complainant Omolo $5.$ Anthony, U. Shs.5,000,000 $=$ as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment. - The respondent is ordered to pay the 5th complainant. Amuge Janet. $6.$ U. Shs.5,000,000= (Five Million Shillings) as general damages for violation of her right to protection from torture, cruel, inhuman and degrading treatment. - The respondent is ordered to pay the 6th Complainant Osuku Moses $7.$ U. Shs.5,000,000= (Five Million Shillings) as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment. - All the above sums of money will carry interest at 10% per annum 8. until payment in full.

Either party dissatisfied with this decision, or any part thereof, is informed of the right to appeal to the High Court of Uganda within 30 days from the date hereof.

DATED at Soroti this $\ldots$ 2.6th day of $\ldots$ June 2024

## HON. MARIAM WANGADYA

HON. COL. (RTD.) STEPHEN BASALIZA

HON. CRISPIN KAHERU

HON. JACKLET ATUHAIRE **RWABUKURUKURU**

MULON **CHAIRPERSON**

**COMMISSIONER**

COMMISSIONER

**COMMISSIONER**

$19$

![](0__page_19_Picture_0.jpeg)