Alungu v Attorney General (Complaint No.UHRC/ SRT/117/2OO8) [2017] UGHRC 19 (14 November 2017)

Full Case Text

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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **AT SOROTI** COMPLAINT NO. UHRC/SRT/117/2008

ALUNGU GERALD ::::::::::::::::::: COMPLAINANT

## AND

ATTORNEY GENERAL INSTRUMENTIC **RESPONDENT**

## [BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA]

## **DECISION**

The Complainant Alungu Gerald a resident of Aketa Village, Aketa Parish, Ongongoja Sub County in Katakwi District alleged that on 16/10/2008, he was arrested by Military Police from Soroti on allegations of illegal possession of a fire arm and taken to Katakwi Central Police Station. That during his arrest and detention he was beaten by Military Police. He was released on the following day. He therefore sought for compensation for the torture meted on him.

Issues for determination

**青山道道着网络丽兰**

- I. Whether the Respondent's agents violated the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - II. Whether the Respondent (Attorney General) is responsible. - III. Whether the complainant is entitled to a remedy.

Before I resolve the above issues, I wish to state that this matter was mostly heard by former Member of the Commission, Violet Akurut Adome [Ms], I have therefore based this decision on her record of proceedings.

In addition, I note that the Respondent did not call any defense witnesses but filed submissions in defense of the matter. Nonetheless, the Complainant retained. This is in accordance with the provisions of the Evidence Act Cap 6, Laws of Uganda to wit; SectionlOl [1] of the Evidence Act provides that:- "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that the facts exist." Section 102 of the above Act further provides that:- 'The burden of proof in a suit or proceeding lies on that 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 agents violated the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.**

The Convention against Torture (CAT) and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 defines "torture" under its Article 1 as:-

*"An 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 suspected of having committed or intimidating or coercing him or a third person 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 any other person acting in an official capacity."*

The words "cruel, inhuman and degrading treatment or punishment' are added to extend to the widest possible protection against abuse whether physical or mental.

Article 24 of the Constitution of the Republic of Uganda 1995 prohibits the violation of a right to freedom from torture or cruel, inhuman or degrading treatment or punishment. This provision was emphasized in **Attorney General Vs. Salvatori Abuki Constitutional Appeal No.1/1998** that the freedoms enshrined under Article 44 [a] of the Constitution are non derogable and include freedom from torture or cruel, inhuman or degrading treatment or punishment.

In addition, subjection of individuals to torture or cruel, inhuman or degrading treatment or punishment is prohibited under Articles 7 of the International Covenant on Civil and Political Rights, 1966 and 4 and 5 of the African Charter on Human and Peoples' Rights 1986.

In determining whether the Complainant was indeed subjected to torture 1 will be considering key elements that must be present to sustain torture or cruel, inhuman or degrading treatment or punishment allegations. These elements are:-

- a. Whether the Complainant suffered severe physical or mental pain or suffering - b. The pain suffered was intentionally inflicted for a purpose such as obtaining information, confession, intimidation or coercion and; - c. The pain or suffering was inflicted at the instigation of or with the consent or acquiescence of a public official

The Complainant **Alungu Gerald** stated that on a date he could not remember in the years 2008 he was arrested by soldiers on allegation of illegal possession of a fire arm and taken to Katakwi Central Police Station [CPS]. The soldiers were 12 military police in uniform and all had guns. They arrested him at around 2:00a.m, while sleeping. Upon his arrest, he was beaten by the arresting Military Police; made me to make press ups while being kicked on the legs and hold his ears and move like a goat from 6:00am to 9:00a.m. That he was thereafter handed over to the Officer in Charge Katakwi CPS. That the Police sent someone to investigate his case and they found that he had no gun and was released on that day. That wife took him to Katakwi Hospital for treatment. That as a result of the beatings, his ribs had blood clots and had difficulty in breathing. That he was examined by Dr. Ocwimwa while at Katakwi Hospital where he spent one day. That the rest of the treatment was received from Aketa Health Center III.

During cross examination, the Complainant stated that he was arrested from his home by a soldier at around 2:00a.m on allegation of illegal possession of a gun. That he did not have a gun and had worked with Arrow Boys for 2 years, much as he was not officially discharged from the army. That he did not know what happened to his gun because it remained at Usuk Headquarters and when he had gone home to dig. That he was arrested at around 5:00p.m by 12 soldiers whom he was able to identify very well when he was being taken to Katakwi CPS. That the soldiers were all moving in a vehicle and in uniform. That when he was being arrested, his wife was at home and she witnessed the beating which took place from 5:00a.m to 9:00p.m. That he was released on that same day and was taken to Katakwi Hospital and examined by Dr. Ocimwa. That he was admitted at the hospital for only one week and was later referred to Aketa Health Center III. He stated that he had the medical reports on which he was treated and he was digging to earn a living though with difficulty.

**CW1 Imuduk Christine** stated that Mr. Alungu Gerald was her husband and in 2006, at around 2:00a.m, armed uniformed soldiers (military] came for her husband. That they kicked their door open and they came looking for a gun and scattered everything in the house. That the children started crying while they were scattering things but found nothing. That they beat Alungu using the gun on the sides, back, chest and were kicking him while he was crying. That they then took him to Katakwi CPS; and on the following day, she and her brother in law followed him up. That they found him being tortured while being pulled by the ears and beating him using a gun butt. That she started crying while begging the Police to go and grade their home so that they can search for the gun. That one of the Policemen intervened by barking at his colleague who was torturing her husband and he stopped. That on that day, having found no evidence against him, her husband was released and they went to Katakwi Hospital where he was admitted for a week. He was vomiting blood and after being discharged, we went to UHRC Katakwi to report the matter. That her husband was a UPDF Soldier in Somalia and Congo and left the gun at his former work place. That he retired from the army and did not have grudges with the neighbors.

During cross examination, the witness stated that the Complainant was arrested by military police at around 3:00am. That the soldiers were about 15, they were in uniform and was able to identify them by the stars on the uniform and the Uganda Flag which was showing light. That the soldiers also had torches and she was with her husband at that time. That the husband was undressed and she saw the soldiers beat him severely both at home (was kicked] and at police for about 1 hour. That she went to police with Ameletum Michael to see him. That the Complainant was beaten by 2 soldiers while 5 others surrounded him. That the complainant was taken to Katakwi Hospital by pushing him on a bicycle because he was badly off. That the husband had worked with both UPDF and Arrow Boys and he had never told her that he had been chased from the army or come with a gun home. That he did cultivation for a living.

Upon re-examination by Commission Counsel, the witness stated that military police were the ones who wear red caps.

**CW2 Ameletum Michael** stated that when his mother told him that his brother Alungu had been arrested, he rode to Katakwi CPS and found Alungu being tortured by soldiers wearing military uniforms on allegation of illegal possession of a fire arm. That he could not remember the date, month or year this happened. The soldiers would pull his ears while kicking him; and made to make press ups while being kicked on the legs. That Gerald was a UPDF Soldier and before he retired, he left the gun in the army. That he left the army because he started falling sick. That he was released from Katakwi CPS on the following day and he went to UHRC offices to report the incident. That when he went back home, he was taken to Aketa Health Center and then to Katakwi Hospital. That he was not admitted at Katakwi Hospital but was treated and taken back home.

Upon cross examination, the witness stated that he was not at home when Gerald was arrested; their mother told him at around 5:00 a.m of the same day. That he went to

Katakwi CPS with Gerald's wife to see him and he found him there; it was around 8:00 a.m. That he found him being beaten by 4 soldiers who were in uniform. That the soldiers were using hands and legs to beat him for about 1 hour and was released on the next day. He further stated that Gerald worked with the Arrow Boys and a one Osiyel took the gun he was using because he did not come back home with it.

**CW3 Asero Jenniffer** stated that she was a Nursing Officer working at Aketa Health center III. That she held a Diploma in General Nursing from St. Kizito School of Nursing in Matany obtained in 2006. That she was representing the Medical Officer who treated Alungu Gerald. That when the patient was treated on 17th October 2008, he complained of pain in the chest, back inflicted by kicks by soldiers who arrested him. He was coughing blood. That this effect was documented. That he was started on antibiotics treatment and PPF and Penicillin for 5 days; and on algesta (pain killers] for 3 days.

During cross examination, the witness stated that the complainant was examined by Benedict Ojuka (deceased] on 17/10/2008 but did not sign anywhere on the medical document *[The tribunal noted that the medical report was confirmed by the Officer in Charge ofAketa Health Center who was not able to attend tribunal to have originated from the facilityJ. The* witness further stated that she joined the health center in 2014 and I only knew him as the person who treated the Complainant. That the prescription given was consistent with the complainant's ailments and the patient was an outpatient. That the patient was in serious condition given that he was coughing blood but was managed. That the injury was classified as "harm" because it was not life threatening and the patient made full recovery.

Upon re-examination, the witness stated that she was sure that a one Benedict Ojuka had treated the complainant.

**A** certified copy of the Complainant's medical report was admitted as **Exhibit 1.**

Counsel for the Respondent Mr. Lumbe Eric filed submission in which he argued that "torture" triable by Uganda Human Rights Commission was that in which a person was tortured in order to obtain information or a confession from that person. She therefore concluded that that the Complainant was not tortured.

I do not agree with Counsel for the Respondent's submission. The Republic of Uganda signed and ratified the International Covenant against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [UNCAT] 1984; and also incorporated provisions thereof into national legislation, specifically under Chapter 4 of the Constitution of the Republic of Uganda 1995.

As already cited, Article 1 of UNCAT defines what torture entails. It is true that one of the key elements of torture include infliction of pain upon a person so as to obtain information or a confession as Counsel for the Respondent stated. Respondent counsel applied a definition provided in the Macmillan School of Dictionary at page 779 which defines "torture" as "extreme physical pain that someone is forced to suffer as a punishment or as a way of making them give information." This definition is not applicable in light of domestic, regional and international human rights instruments providing for the right to freedom from torture, lam therefore of the opinion that Counsel for the Respondent limited herself and did not apply the law as she ought to have done.

The Complainant and his witnesses adduced evidence to the effect that the Complainant was arrested on allegations of illegal possession of a gun and beaten so that he could reveal where the gun was.

Regarding the Jurisdiction of Uganda Human Rights Commission, one of the drivers for the establishment of the Commission lies under Article 52[l][a] which mandates the Commission "to investigate, at its own initiative or on a complaint made by any person or group of persons against the violation of any human right." Furthermore, in order to reinforce the above provision, under Articles 53(1] & [2], the Commission has powers of a court so as to enable her address human rights violations. I will not indulge myself on what a human right is or not, but only note that freedom from torture or cruel,

inhuman or degrading treatment or punishment is right that has to be protected by the State.

I therefore find that the Complainant was beaten by military police so that he could reveal where the gun was and that this complaint was rightly brought to the Commission.

Furthermore, Counsel for the Respondent submitted that in order to prove that the Complainant was tortured, medical evidence was the best to prove the same and that it ought to have indicated injuries suffered [or that severe pain was inflicted] and classification of the injuries sustained.

I do not agree with the Respondent's Counsel's submission on the requirement of medical evidence to prove torture. 1 will refer to the case of Fred Kainamura *SC* Ors Vs. **Attorney General** *SC Ors* **1994 KALR 92,** in which Justice Okello J held that, *"it is true there is no medical evidence to support the evidence of assault submitted by Turyasingura. But it was not a requirement of the law that every allegation of assault must be proved by medical evidence. I think cogent evidence can do medical evidence help to prove the gravity ofassault."*

I therefore find that medical documentary evidence is not a legal requirement to prove torture and as such, 1 will rely on the oral evidence on record. However, such evidence may be important in clarifying the effects of the injuries suffered on the victim.

In respect to classification of injuries suffered and failure by the expert witness who examined the complainant, injuries sustained were classified as "harm" and further revealed that the said injuries sustained were "pain in both sides, in the chest" which were inflicted using kicks/feet, gun and hands and was coughing blood by the time he was examined at the hospital. This evidence was corroborated by CW 1 and CW3. The latter also adduced evidence that due to the pain inflicted on the complainant, he received treatment from Katakwi Hospital for one week and was further referred to Aketa Health Center HI where he received treatment for 5 days as an outpatient.

In addition, I note that the complainant stated in his evidence that he was never admitted at Katakwi Hospital but was taken home on the same day; however, his witnesses CW1 and CW2 stated that he was admitted in Katakwi Hospital for one week. I find that neither the complainant story or witnesses' evidence connect. It is contradictory and not helpful at all tribunal.

In respect to inconsistency of witnesses, Courts in **Uganda Versus Vs, Rutaro [19761 HCB 162; Uganda Vs. George W. Yiga R979] HCB 217 and Uganda Vs. Abdalla Nasur [19821** HCB have stated that "a witness may be untruthful in certain aspects of his evidence but truthful in the main substance of his evidence. A witness who has been untruthful in some parts and truthful in other parts could be believed in those parts where he has been truthful. However, whereas, grave inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. The tribunal shall therefore regard truthful parts of the witness evidence that corroborate the complainant's allegations especially witnesses having seen soldiers beating the Complainant at Katakwi Police Station.

I also note that, it is wise for the tribunal to discard the medical report tendered in during the hearing because it is also not advising the tribunal as to certain facts it ought to. In addition, the medical document was not authentic, the witness did not work with the doctor/author of the medical report and the complainant was not sure whether he actually treated him, the document was not signed. These observations are not in line with rules of evidence which require a person who was familiar with the handwriting of the person who wrote it. Reference is made to **Sections 45 and 66 of the Evidence Act Cap 6, Laws of Uganda** which provides that " a person is said to be acquainted with the handwriting of another person when he or she has seen that person write, or when he or she has received documents purporting to be written by that person in answer to documents written by himself or herself or under his or her authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him or her;" and that;

"If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his or her handwriting." The Complainant's medical report was written in 2008. CW3 joined the health facility in 2014 and was assigned the duty to represent a medical personnel who was well acquainted with the author of the report to give an opinion. This was not practical since a doctor cannot delegate a nurse as an expert to interpret his findings. I observe that CW3-a Nursing Officer is a cadre below that of a Doctor and 1 doubt whether she had obtained the required skill or knowlegde to give on opinion of a Doctor's findings as required. Ref: **Section 43 Evidence Act.**

In **Weal Vs, Bottom [1966] 40 AL|R,** Barwick C. J observed that, "a field of expertise should be considered in order to admit expert evidence, and that that "by an expert properly so-called, that is to attention not just on the witness's qualifications say, by a person who by study and instruction in some relevant scientific or specialized field was able to express an opinion, scientific or specialized knowledge thus acquired..." This principle was confirmed in **Uganda Vs. Suliman Indibarema and Another [1982] HCB 2 ,** where Allen J stated that " special skill in a particular science is not confined to knowledge acquired but also include skill acquired by practice." In the instant case, the tribunal will not accept a nursing officer to be in any way sufficiently knowledgeable in matters concerning medicine since her training and experience was very inadequate

Having disregarded the medical evidence of the Complainant, the only evidence that the tribunal can consider was that adduced by the Complainant witnessesfdirect evidence] which in this case is sufficient to that he was subjected to torture or cruel, inhuman or degrading treatment or punishment by the Military Police. He suffered physical pain and suffering inflicted by the beatings of military police officers while being asked to reveal where the gun he allegedly had was. The military Police were public officials in the employ of the government of Uganda and were well known and identified by the complainants and his witnesses.

WHEREFORE, 1 find on the balance of probabilities that the Respondent's agents violated the complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. The claim of torture by the complainant in this matter is therefore upheld.

**ISSUE II: Whether the Respondent [Attorney General] is liable.**

As earlier noted in the preceding issue, there was a violation of the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment contrary to provisions of the law.

Article 1I9[4] [c] of the Constitution of the Republic Uganda provides that the role of the Attorney General is to represent Government in any civil proceedings to which Government is party. Section 10 of the Government Proceedings Act provides that all civil actions by and against the Government should be instituted by or against the Attorney General.

In the case of **Muwonge Vs. Attorney General [1967] 1 EA 17,** Newbold P stated that; "the law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are acts for which the master is to be held liable".

Therefore, under the principle of vicarious liability, it is immaterial if the acts done by the servants are erroneous or unlawful or done without authority. The master will still be held liable if such acts are done in the course of their employment.

Counsel for the Respondent submitted that neither the Complainant nor his witnesses adduced evidence to show that when the Military Police tortured him, they were in the course of their duty.

The Complainant and witnesses CWI and CW2 stated that when the Complainant was arrested and was being tortured, the Military Police were in uniform. An army uniform is a tool of work for the UPDF and besides this, the Complainant [having worked as part of the Arrow Boys - a government militia] was arrested for illegal possession of a gun. This then point to the fact that the Military Police were at all times in the course of their employment.

It is therefore proper that their master, the Government as represented by the Attorney General, to be held liable for the violation of the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment in this matter.

## **Issue III: Whether the complainant is entitled to a remedy.**

Article 53[2][b] and [c ) of the Constitution of the Republic of Uganda states that; "the Commission may, if satisfied that there has been an infringement of a human right or freedom order-payment of compensation or any other legal remedy or redress." In the matter of **Christopher Ssajabi Nsereko Vs. Attorney General,UHRC No.112/99** Commissioner F. Mariam Wangadya observed that indeed human rights and freedoms would serve no purpose if their violations did not attract redress to the victims.

Having found that the Respondent's agents violated the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment, it therefore follows that he is entitled to a remedy by way of compensation by the respondent.

In **Isabirye Kiwule Vs. Attorney General, UHRC/I/35/2OO3,** Commissioner JM Aliro Omara laid down points to consider when granting compensation for breach of a Complainant's freedom from torture or cruel, inhuman and degrading treatment or punishment as; the nature of torture and injuries sustained by the Complainant and the impact on his life if any, the fact that this right is absolute as stipulated in Article 44[a] of the Constitution of the Republic of Uganda 1995, the innocence of the complainant and where possible, previous awards in cases or complaints of a similar nature.

In the instant case, I note that the actions of the Military Police against the Complainant were cruel, uncalled for, criminal and oppressive. I will therefore consider the lattens' actions, evidence on record to the effect that the Complainant suffered severe pain. I will also consider the fact that the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is non-derogable under article 44(a] of the Constitution of the Republic of Uganda.

In the instant case, the Complainant prayed for compensation but did not state how much he expected to be awarded. After considering the above, I find a sum of **UGX 8,000,000/ = (Uganda Shillings Eight million]** as adequate compensation in the circumstances. 1 so award.

## **ORDER**

The Tribunal therefore orders as follows:

- 1. The complaint is allowed. - 2. The Respondent (Attorney General] is ordered to pay to the complainant Alungu Gerald a total sum of **UGX 8,000,000/= (Uganda Shillings Eight million]** as general damages for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. The said amount of **UGX 8,000,000/= (Uganda Shillings Eight million]** shall carry interest of 10% from the date of this decision until payment in full. - 4. Each party shall bear their own costs.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date of delivery of this decision.

**DATED at SOROT1** on this A.^.....day of **2017.**

**NEDDIE B MULUMBA PRESIDING COMMISSIONER**