Anyanzo Bosco v Attorney General (Complaint UHRC 79 of 2012) [2017] UGHRC 4 (11 October 2017)


# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA** COMPLAINT NO: UHRC/79/2012

ANYANZO BOSCO:::::::::::::::::::::::::::::::::::

#### **AND**

#### ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

# [BEFORE HON. COMMISSIONER STEPHEN BASALIZA] **DECISION**

The Complainant Anyanzo Bosco, lodged this complaint with the Commission alleging that on 7<sup>th</sup> October 2012 at around 9:00pm while on his way to work as a night private guard, he was stopped by a policeman attached to Kitara police post. That the police man asked him to identify himself, which he did and that he asked him to give him a receipt for the old iron sheet he was carrying. That the Complainant then asked to come back the next day since he was running late for work but the police man instead told him to wait for his bosses. After 30 minutes of waiting he again requested to leave the iron sheet behind so that he could report to work and sort out the matter the next day but that the policeman hit him on the knees and on the arms with a baton and his arm got broken. He also alleged that he was transferred to Universal police post where he was detained for a night. The Complainant seeks to hold the Respondent vicariously

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liable for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment and also seeks compensation for the injuries sustained.

## The following issues were agreed to for determination;

- 1. Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated and if so, whether the Respondent is liable. - 2. Whether the Complainant is entitled to any remedy.

#### **Resolution of issues**

Before I resolve the above issues, I would like to state that the Respondent did not call defence witnesses nor did he file submissions in defence of the matter.

The above notwithstanding, it remained the duty of the Complainant to prove his claims against the Respondent on a balance of probabilities in line with the provisions of the Evidence Act. cap 6 to wit; Section 101 (1) of the Evidence Act, Cap 6 Laws of Uganda, provides that;

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

#### **Section.102 of the Evidence 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."

Issue one: Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents.

The right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected under Article 24 of the Constitution of the Republic of Uganda, 1995. It provides that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. This right is further protected under Article 44 (a) of the Constitution of the Republic of Uganda 1995, which makes it a non derogable right.

The term torture is defined under the Prevention and Prohibition of Torture Act 2012, and the Convention AgainstTorture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the CAT), which Uganda is a signatory 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 is 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".

Article 1 of the CAT has been interpreted in Uganda in the case of Fred Tumuramye V<sup>s</sup> 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, intimidation, coercion or for any reason based on discrimination. - The act is inflicted by or at the instigation of or with the consent or acquiescence $\mathsf{C}.$ of a public official or other person acting in an official capacity.

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The court in the case of Ireland V United Kingdom (1978) 2 EHRR 25, differentiated torture from inhuman treatment or punishment and from degrading treatment or punishment by noting that torture requires a deliberate inhuman treatment causing very serious and cruel suffering,' whereas inhuman treatment or punishment involved the 'infliction of intense physical and mental suffering' which reached a minimum level of severity, and degrading treatment required 'ill-treatment designed to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.

Having discussed the law on torture or cruel inhuman or degrading treatment or punishment, I now move to relate the law to the evidence.

Anyanzo Bosco testified that on 7<sup>th</sup> October 2012 at 9:00pm while on his way to work, he was stopped by a police man identified as Mabiro Steven P. C 38614 who asked him where he was going and he responded by telling him that he was going on duty. Mabiro Steven then asked him for the receipt of iron sheetswhich he did not have, the policeman Mabiro, then got the complainant's identity card and commanded him to sit down and wait for his boss. That the same police man Mabiroafter a while requested him for Ushs.50,000 to be released but the Complainant declined stating that he was not a thief. He then stood up and requested the police man to let him go but the police man instead beat him with a baton on the legs knees and arms and asked him to sit and wait for his boss. That when the boss arrived he was taken in apolice patrol car to Kisaasi police station where he was detained and the following day he was made to clean the counter room, that he tried cleaning in pain since his hand had a dislocation. He requested for his release but was told to first make a statement. He further alleged that his statement was taken down by Mabiro and thereafter released at 2pm. That upon his release he picked a P. F.3 from Kira Police and went to Mulago hospital. On examination he was asked to do an x-ray and it was discovered that he had a compound fracture that was treated and P. F.3 filled. That from Mulago Hospital he took back the P. F.3 to Kiira road police station where he was again referred to bombo road police station to see a police surgeon. That the police surgeon examined him and sent him back to Kiira road police station.

During cross examination the Complainant stated he was arrested because he was suspected of being in possession of stolen property. He added that some people were present when he was arrested. He confirmed that he sought medication two days after the assault at Mulago hospital where he was examined and referred to the Orthopedic department where he was treated. The Complainant further stated that he didnot go to any other hospital after Mulago.

During re examination he stated that he was assaulted from Kitara police post and that it took him one and a half months for his left arm to get healed.

The complainant's witness Alex Anyanzo, stated that in 2013 while at his Uncle's place in Bukoto Kampala, he gave Anyanzo Bosco a piece of iron sheet. That later Bosco left for work but didnot come back as he normally did. That he went to town and when he came back he found Boso with a swollen hand and he advised him to check at the police post in Kitara and Kisaasi police station. That Bosco later went to Mulago hospital for treatment.

During cross examination the witness stated that he saw two people who assaulted the complainant. He confirmed that it was his hand that was injured. He also stated that he didnot take the complainant to hospital.

On re-examination Alex Anyanzo stated that it took one month for the complainant to get cured and that the complainant was beaten by the Policemen whom he could identify by visage.

The complainant's other witness Dr. Nsereko Mukasa, stated that he was aforensic pathologist holding a Bachelors of Medicine and Surgery and Masters of Medicine from Makerere University. He stated that he was the author of police form 3 presented by the complainant whom he examined and that his findings were the complainant's left arm

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had a fracture and was covered in plaster, he had fresh scars on the right and left knee. He added that he classified the injuries as grievous harm occasioned by assault with a blunt object. The medical report was admitted in evidence as the complainant's exhibit.

During cross examination the expert witness stated that he completed his MBCHB in 1980 and that he was a forensic pathologist. He confirmed that when he examined the complainant he had fresh scars and that he classified the injury as grievous harm because the complainant had serious harm injuring his health, and that according to his report the injury was about seven days. He further stated that the injury was caused by a baton because that is what the complainant had stated.

The evidence of Dr. Nsereko Mukasa corroborated the statement of the complainant in regard to the beatings subjected to him. Having established that the complainant was beaten, I will go further to evaluate whether the ingredients of torture have been proved.

The act by which severe pain or suffering was inflicted on the complainant was proved by the medical evidence pointing to torture and confirmed by the medical expert who classified the injury as grievous harm.

The reason as to why the complainant was tortured according to his testimony which was not rebutted, was that he was arrested on suspicion of being in possession of stolen property, and also because he had declined an advance of Ush, 50,000 to the arresting officer and on his request to be released he was instead beaten.

And lastly the fact the complainant was arrested and beaten by a police man he identified as Mabiro Steven P. C 38614, who was an agent of the Uganda police forceestablishes the fact the police man was acting in an official capacity since he was arresting a suspect.

Although the Respondent's counsel cross examined the complainant and his witnesses, he never called any witnesses to adduce evidence in rebuttal of the Complainant's evidence, including the fact now established that the police personnel who tortured the complainant was in the course of his duty and service to the State.

As such, I will apply the principle of law that was upheld in the case of Muwonge Vs Attorney General (1967) (EA) 17, in which the presiding judge the Hon. Justice Newbold P. held 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 for which the master is to be held liable.

In this respect, the Constitution of Uganda under Article 119 mandates the Attorney General to, among others, represent the Government of Uganda in courts or any other legal proceedings to which Government is a party. Accordingly, I find and hold the Attorney General vicariously liable for the violation of the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment, which was committed by the policeman attached to Kisaasi police station.

### **Issue Two: Whether the Complainant is entitled to any remedies.**

#### **Article 53(2) of the Constitution** provides that

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

(a) The release of a detained or restricted person

(b) Payment of compensation; or

(c) Any other legal remedy or redress."

Therefore, having held that the state agent violated Anyanzo Bosco's right to freedom from torture or cruel, inhuman and degrading treatment he is entitled to compensation by way of general damages. The actions committed against Anyanzo Bosco by Mabiro Steven a police man were totally unjustified and unconstitutional.

In order to determine the quantum of damages to be awarded for the violation, I will take into consideration previous awards in similar complaints, the nature and effects of the injuries suffered, and the fact that the right to protection from torture or cruel, inhuman and degrading treatment is an absolute right under Article 44(a) of the **Constitution.**

In Pte Birungi vs Atorney General & OthersNo.392of 1997, he complainant Pte Birungi was tortured and suffered severe injuries as a result of the gunshot wound. The Expert witness Dr. Nsamba classified the injury as grievous harm and the incapacitation was assessed at 10%. The Presiding Commissioner awarded the ComplainantU.shs.15,000,000 as general damages for the violation of the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment.

In the instant case the injury proved to have been inflicted on Anyanzo Bosco was a fractured arm although his arm was not amputated and incapacitation assessed. In comparison with the cited cases the Complainant's injury was less severe. Taking into consideration all the above I will consider a figure of U.shs7,000000(Seven million shillings) as adequate compensation for violation of Anyanzo Bosco's right to protection from torture or cruel, inhuman and degrading treatment or punishment. I so award.

#### **ORDER**

- 1. The complaint is allowed. - $2.$ The Respondent (Attorney General) is ordered to pay to the Complainant Anyanzo Bosco a total sum of Ug. Shs.7,000,000/ $=$ (Seven million Uganda shillings only) as general damages for violation of the complainant's right to

protection from torture or cruel, inhuman or degrading treatment or punishment.

- Interest at 10% per annum to be paid on the mentioned total amount calculated $3.$ from the date of this decision until payment in full. - $4.$ Each party to bear their own costs. - $5.$ 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 this decision.

So it is ordered.

DATED AT KAMPALA ON THIS....................................

**STEPHEN BASALIZA** PRESIDING COMMISSIONER