Asiimwe v Attorney General (UHRC/FPT/087/2008) [2018] UGHRC 29 (11 June 2018)


### **THE REPUBLIC OF UGANDA**

# **THE UGANDA HUMAN RIHTS COMMISSION (UHRC) TRIBUNAL**

### **HOLDREN AT FORTPORTAL**

## **COMPLAINT NO: UHRC/FPT/087/2008**

**ASHMWE CHARLES::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::COMPLAINANT**

**And**

**ATTORNEY GENERAL RESPONDENT**

## **BEFORE PRESIDING COMMISSIONER HON. DR. KATEBALIRWE AMOOTI WA IRUMBA**

### **DECISION**

The Complainant (C), Asiimwe Charles alleged that on 17th August, 2008 at around 9:00 p.m. while he was on his way home, he was arrested by a Special Police Constable (SPC) called Kalindi and the OC. CID both attached to Bigodi Police Post, on the allegation that he had attempted to assault one Kabahenda. That the two police officers kicked him and also used gun butts to beat him, which resulted into the swelling of his right foot. That the SPC got hold of his throat and tried to suffocate him as the CID officer continued beating him using the gun butt. That when they reached the Police Post, the CID officer ordered that he should further be beaten, and he was therefore again beaten until he became unconscious. He also alleges that as a result ofthe beating, he started passing out bold in his urine, and that he also sustained bruises all over his body. That he was released on Police Bond the following day, and that is when he went for medical treatment.

C prayed for compensation from R.

However, R's representative Counsel (RC) denied C's allegations and opted for putting up a spirited defence.

## **Issues:**

The issues to be resolved by the Tribunal are:

- 1. Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether R is vicariously liable for the violation. - 3. Whether C is entitled to any remedy.

## **Issue 1: Whether C's right of freedom from torture or cruel, inhuman or degrading**

### **treatment or punishment was violated by State agents.**

C testified that on the 17th August 2008, at around 9.00 p.m. as he was at Bigudi stage in the trading centre, he was ambushed by two people namely, Kalindi John, an SPC attached to Bigodi Police Post and Eriyaku Julius, the Officer in-Charge of CID at the same Police Post. That the two policemen were wearing civilian clothes and they were also both armed. That when the two met him, they got hold of his arms and pulled him forward. That as he was being pulled, he resisted by trying to pull himself away from them, and the O/C CID then slapped him. That when he asked them why they wanted him, he was informed that they had arrested him and that they would tell him the reason why after reaching where they were taking him. That he asked them to allow him to inform his people and also to report to police the next morning but the officers started beating him more severely using the butts of their guns. That when he raised his hands to avoid the beating, the officers said that he wanted to fight them and so Kalindi, the SPC pushed him down by kicking his legs and when he fell down, Kalindi sat on him and held his hands down while Eriyaku continued beating him with the gun butt on his head, hands, joints of both arms and both legs as well as his back. That at that moment, his right hand, the left leg and foot were fractured.

C testified further that the beating took over 20 minutes. That Eriyaku was all the time telling the SPC to beat him seriously. That he was told to stand up and move with them but he could not do so because ofthe fractured leg and foot, and this made the two policemen to beat him again, blaming him that he had refused to move. That at that time, there came two other SPCs, who found C down. That the two SPCs who came were Sulaiman Bigyezo and Tweheyo. That Bigyezo had a walking stick and he also started beating C with the same stick. That Kalindi had told Bigyezo that C was fighting them. That Bigyezo beat his legs with his stick for about 5 minutes, and the four SPCs then lifted him up and started pulling him with his feet on the ground since he could not move. That when they reached the middle of the road, the SPCs released his foot and hit him down and at that time, C was shouting loudly. That they started beating him again using the walking stick and the gun butts.

He pointed out that Bigyezo and Tweheyo did not beat him at this particular point but were kicking him. That at that juncture, C's wife called Asio Irene together with Magezi who had gone to tell her that the SPCs were killing her husband since he had seen what the SPC were doing' to C, came to the scene. That Asio asked the officers what offence C had committed, and the SPCs told her that he had threatened to beat Kabahenda Beatrice, whom he had attacked with a knife. That the officers lifted C and Irene followed them to Bugudi Police Post.

That on their way, they passed at the home of Magezi and Bandashi Hellen while the police officers were still beating him and as he was also still shouting. That both Magezi and Bandashi heard C's voice and came out of their house and Bandashi shouted at the officers telling them that she had seen them wanting to kill C. That the officers stopped beating him, released his hands and he fell down.

That the officers carried him again up to the Police Post and when they arrived, he was thrown down and they started beating him again using gun butts and also kicking him. That Kalindi was chocking him while Tweheyo was hitting his chest, and all this was done in the presence of Asio Irene, Magezi and Bandashi who were all around. He pointed out further that he knew the officers who beat him because they were all residents ofthe same area where He himself lived. That he also knew their voices and they were calling each other by their names. That they were later stopped by Mr. Wilberforce Rugomoka, the Local Council Member ofBigodi village, who also requested them to allow him take C to his place and then return him to the police post the next day. That the police officers refused and instead threw C into the cell like a sack. That he found other two young men in the cell but he did not know them.

That the following morning on 18 August 2008, he was ordered to sweep the cell but he informed the officer that he could not stand and at around 11.00 a.m, when his wife had returned to the police post, she helped him move to the office of the O/C Station where he recorded a statement before he was returned to the cell. That he was later released on bond at

around 5.00 p.m in the presence of his wife Irene and Rugomoka. That when he went home, he received treatment of injection and tablets from nurse Babra and the next day, he was given a Police Medical Form from Bigudi Police Post. That he went to Fort Portal Regional Reffereal Hospital on 23rd August 2008, where he was ordered to go for an X-ray at Kabarole Hospital but since that hospital had no films, he went to Out-reach Africa Medical Centre. That he had fractures on his leg and foot, and the X-ray examination cost him Ugs. Shs.40, 000.

The photocopy of the Police bond document was admitted as C's first document of identification (CID1).

However, the receipt for the money he had paid for x-ray examination was admitted as C's first exhibit (CX 1).

On the other hand, the the request for an x-ray examination dated 23rd August 2008 plus the two x-ray films were admitted together as C's second set of documents for identification (CID 2).

'

C testified further that on 25lh August 2008, he went to Fort Portal Regional Referral Hospital, where his leg and foot were plastered. That he paid money for this but was not given any receipt. That he stayed with the plaster for one month until it was removed around 30th September, 2008, adding that he had photos showing the plaster as it was on his leg and foot.

The photos showing the plastered leg and foot were admitted as C's third set of documents of identification (CID3).

C stressed that by the time he testified before the Tribunal, he could not do digging work, adding that he continued to feel a lot of pain whenever he walked long distances. That his head was injured and there was therefore a scar which was visible when the head is shaved. That he also had injuries on his left elbow, feet and knees.

C testified further that on 15th November, 2008, he held a meeting with the men who had beaten him. That the meeting took place at Bigodi Church of Uganda and was attended by about eight people namely: Tabaaro Arthur - a Primary School Teacher at Bigodi Parents . Primary School; Yofensi Japan Mzeeri, Bugomoka Wilberfore, Tindyebwa Ronald - <sup>a</sup> game ranger, Bamanya Tadeo - a Primary Teacher, Mugume Johnson - the LC II Chairperson ofthe area, Kalidi John, Eriabu and another police officer whose name he did not know. That the meeting wanted him to settle the matter amicably so that they could stop it at the stage. That C asked for three days to calculate how much money to be paid to him and on 20th November

2008, in another meeting he requested for UGX 3,000,000/= but the police offered to pay him only one million shilling but C disagreed with this proposal.

C. tendered in a letter from Kamwenge Police Station in which the District CID officer confirmed that C had indeed been arrested at Bigodi Trading Center, and that the police men who arrested him had used excessive force on him, which resulted into the injuries that he suffered. The letter added that the said police men were charged for having caused grievous harm on C and that the relevant case was fixed in court for hearing.

The letter was admitted as C's second exhibit (CX2).

C's first witness (CW1), Abijo Hellen who was also his mother-in-law, testified that on 17th August, 2008 at around 9.30 p.m. while she was at her home in Bigode, she heard people struggling. That she got a torch and flushed it on them, and then saw SPC Kalidi John, SPC Bigezo Sulaiman, SPC Tuheyo and Detective Constable Eriaku Julius, all of Bigode Police Post beating C. That Detective Constable Eriaku was telling Sulaiman who was holding a gun, to hit C's head so that they could kill him that day.

She added that they beat him from the road in front of her own house. That she saw them hitting C, sitting on his chest and also holding him by his arms against his chest. That Bigezo was hitting C's head with a gun and Tweheyo was just standing on the other side together with Detective Constable Eriaku who was commanding and telling the other men to hit C's head.

She testified further that the beating lasted for about thirty minutes but she did not hear them say the reason why they were beating C. That later on, C told her that those men caught him from the pork joint and started beating him while ordering him to go with them but that he had done nothing wrong. That after flushing the torch on Detective Constable Eriaku and identifying him, she told him that if they killed C, the following day he would be held responsible and when Eriake heard her voice, he told the other men to take C to the police post, which they did. That at that time, many boda boda riders came and they and her followed C where he had been taken.

CW1 added that when they reached Bigodi Police Post, the policemen opened the cell and just pushed C inside and he fell down on his back and went silent. That as a result C's silence she feared that perhaps he had died. That she knew the policemen who beat C since they had been working in Bigode area.

She testified further that on the second day, she saw C late in the evening as he had been kept at the Police Post the whole day. That he had some bruises on his arms and his face was swollen. That a plaster had been put on one of his legs but she could not remember which one exactly, and that after treatment he recovered.

During cross-examination, CW1 stressed that she was telling the truth about what had happened, and that she had clearly identified the Detective in the darkness because he was their neighbour and she knew his voice which she recognized as soon as she heard him talking. That she had also flashed a torch on him through the front window of her house and seen him clearly.

She stressed further that the policemen were using guns to beat C, and they were four in number. That one of them was holding C's neck, another one was standing but the one who did most ofthe beating was Kisoso. That C was beaten on the head and the arms as C tried to use them to protect his head. That it was about 5 to 6 meters between the road where the beating took place and her own house.

C's Medical Expert witness who was also his second witness (CW2), Dr. Mugarura Jack testified that he was a Medical Clinical Officer at Fort Portal Regional Referral Hospital, and he had a Diploma in Curative and Community Medicine, obtained from Fort Portal School of Clinical Officers, in 1988. That he had first worked as an instructor in the same School of Clinical Officers he had just mentioned, and after that he went to Fort Portal Regional Referral Hospital where he had been working since 1998. That his main duties included general clinical work, and it involved receiving patients, including those sent from the police. That after taking down their particulars, he used to carry out investigations according to their complaints. That for those sent by police, he used to fill in the Police Medical Forms and send them back to police but copies ofthe same were kept at the hospital. That he noted that he knew C, and that on this occasion it was his second time that he was giving evidence in the case filed by him. That the first time he had given evidence was when C's case was heard at Kamwenge Grade I Magistrate's Court.

He testified further that on 23rd August, 2008 C went to him complaining that he had been assaulted, adding that he had multiple injuries at that time and he was in a plaster as he had already started undergoing treatment six days earlier. That he had bruises on the left elbow, on the back and on his head, which he classified as grievous harm. That C also had swelling on the back of his right hand which CW2 also classified as grievous harm. That C also had other bruises on his left foot. That the bruises on the right knee measured one inch in diameter, and the one on his right leg measured one inch in diameter. That the other bruises were on the base of the middle finger of his right arm, and there was a swelling on the left foot. That all these injuries constituted grievous harm. CW2 added that he gave him treatment and also requested for an x-ray of the right hand, the left foot and the left ankle.

That C brought the x-ray results on or around 28th August 2008, which showed that he had a fracture of his 5th metacouple. That he had another fracture of the second meta taso, which was classified as grievous harm. The fractures were serious, especially as they were on the parts ofthe body that are frequently used, and could become severe if not properly managed. That in such a situation, they could result into permanent disfigurement, especially the fracture on the foot, as the body exerts all the weight on the feet.

CW2 concluded that the injuries on C could have been caused by use of a rough object when he was assaulted. He testified further that he also filed the Police Form 3 on 1st September, 2008 and signed it. That he put C on diclofenac tablets and Amoxylin capsules, and also referred him to an Orthopedics officer to continue with treatment and to put him in plaster.

The medical form which CW2 interpreted was admitted as C's third exhibit (CX3).

RC declined to cross-examine CW2 thus, accepting wholly his evidence without any challenger to it.

RC identified OC/CID Kamwenge Police Station and OC/CID Bigodi Police Post who were summoned as defence witnesses. However, OC/CID Kamwenge informed Counsel for the Commission on phone to tell the Tribunal that he had tried to find the file concerning the complaint filed by C but he had failed to locate it since he was still new in the force. He therefore said that he could not come to the Tribunal to be a defence witness in this matter. OC/CID Bigodi Police Post also informed Counsel for the Commission to tell the Tribunal that he was new at that police post and he had failed to tress the file about C and therefore he, too, could not testify as a defence witness in this matter.

Therefore, R's side failed to call any defence witness to testify in rebuttal of C's evidence. On the other hand, the cross-examination that was done by RC on C and his witnesses did not shake C's evidence in any way that could discredit it.

The right that was allegedly violated by State agents in the complaint that was filed by C, is totally protected by the legal regime at International and African levels as well as in our Country Uganda. In this regard, the Universal Declaration of Human Rights (UDHR) of 1948 under Article 5, provides that: "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, Article 7 ofThe International Covenant on Civil and Political Rights (ICCPR) of 1996, also totally prohibits torture or cruel, inhuman or degrading treatment or punishment. However, at this level the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (in short, the CAT) of 1984, is even more emphatic about the element oftotal prohibition, as it states that: No exceptional circumstances whatsoever, whether a state ofwar or a threat ofwar, internal political instability or any other public emergency, may be invoked as a justification oftorture.

The African Charter on Fluman and Peoples' Rights (ACHPR) of 1981 under Article <sup>5</sup> also reiterates the total prohibition of violation ofthe same aforementioned right.

The Constitution of Uganda under Article 24 also totally prohibits subjection of anyone to any form of violation ofthe said right. Moreover, under Article 44 the same right is listed as one ofthe four non-derogable rights. In addition, Article 45 provides for other rights, duties, declarations and guarantees relating to human rights and freedoms that are not specifically mentioned in the Constitution to be respected and observed, despite not having been specifically provided for under the Constitution. Therefore, the rights and freedoms that are provided for in the International and Regional human rights legal instruments that I have just cited are also in this way guaranteed by the Constitution ofUganda.

Although torture is totally prohibited by the Constitution and other relevant laws of Uganda, there was still no definition of torture in 2008 within the laws of Uganda when the alleged assault occurred. Accordingly, I find the definition provided under Article <sup>1</sup> of the Convention Against Torture (CAT) that I cited earlier, to be useful at this juncture. The CAT 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.

This CAT definition comprises four important ingredients which I want to summarize as follows:

• That the action(s) of the alleged culprit(s) has /have caused the affected victim(s) severe pain and suffering, whether physical or mental.

- That the pain and suffering caused by the action(s) of the culprit(s) has been intentionally inflicted on the victim(s). - That the purpose ofthe action(s) has been to obtain information or a confession, or for punishment, intimidation or coercion, or for any reason based on discriminating the affected victim(s); and - That the action(s) that has/have inflicted pain and suffering was or were carried out by, r or at the instigation of, or with the consent or acquiescence of, a public official or another person acting in an official capacity.

I have considered these four ingredients in my evaluation of the evidence that was adduced before the Tribunal in respect of the issue under my consideration now, seeking to determine whether or not C's evidence has positively revealed these ingredients thus, enabling me to determine whether or not C's aforementioned right was indeed violated.

The evidence that C adduced to prove that he was severely assaulted and seriously injured by the policemen who arrested and detained him, has been clearly and convincingly corroborated by the evidence that CW1 adduced as an eye-witness as well as the scientific evidence that CW3 adduced as a medical expert who in fact, classified C's injuries as grievous harm. This certainly indicates that C suffered severe pain and even mental anguish.

It is also absolutely clear that the police officers who assaulted C, intentionally and purposefully inflicted the said pain and injuries on C while carrying out their official duties of arresting him, and all this was done to punish him as the policemen believed that he was trying to resist arrest. This is also confirmed by the letter from police which indicated that the police officers had used excessive force while they were arresting C.

Accordingly, my conclusion is that there is a high probability that the policemen who arrested and grossly ill-treated C, did both individually and severally violate his right of freedom from torture or cruel, inhuman or degrading treatment or punishment, in contravention of Articles 24 and 221 ofthe Constitution of Uganda. They also contravened Article 44, thus, violating a non-derogable right. Their actions were also carried out in total disregard ofthe International and Regional human rights legal instrument that I cited earlier on, and which instruments have been ratified by Uganda thus, committing this Country to the observance of the said standards.

## **Issue 2: Whether R is liable for the violations**

I have already established that the police officers who arrested and tortured C violated C's aforementioned right while they were both individually and severally carrying out their security duties in the service ofthe State which employed and paid them.

In this regard, the key tenet of the applicable law provides that any action or even omission that is carried out by a servant while performing his or her official duties, or while he or she is in his or her employment, is considered to be part and parcel ofthe servants employment and it renders the servant's master liable for the action or omission of the servant, even if the act or omission was carried out contrary to the orders or instructions ofthe master, or even when the servant acted deliberately, wantonly, negligently or even criminally or contrary to specific instructions given to him or her by his or her master, or indeed acted for his or her own benefit, gain or advantage, as long as what the servant did or omitted was merely a manner of carrying out what that servant was or is employed to carry out, then the master is liable. [See the judgment by Justice Newbold in the famous case of MUWONGE vs ATTORNEY GENERAL (1967), EA, 17.)

Accordingly, regarding this second issue about liability, it must be the State to be held liable for the violation ofthe aforementioned C's right as already proved.

However, Article 119 of the Constitution of Uganda provides that the functions of the Attorney General shall include among others, to represent the Government of Uganda in courts or any other legal proceedings to which Government is a party. Accordingly, it was proper for the Attorney General to be the Respondent in the instant matter.

I therefore find it fitting to hold R (the Attorney General) vicariously liable for the violation ofC's right that was proved earlier on this decision.

## **Issue No. 3: Whether C is entitled to any remedy**

Article 50 (1) ofthe Constitution ofUganda vests into competent national tribunals the power to order for effective remedies in favour of the victims whose fundamental rights granted to them by the same Constitution have been violated. In addition, Article 53 (2) of the Constitution empowers the Uganda Human Rights Commission to order payment of compensation or any remedy or redress, once satisfied that there has been an infringement on anybody's human right or freedom.

However, as I proceed with the resolution of this third issue, I must as much as possible, take into consideration the following important elements:

- (i) The specific nature of the violation already proved in this matter, and the circumstances and manner in which it was carried out by the perpetrators. - (ii) The Constitutional status of the specific right that has been violated, whether derogable or non-derogable.

- (iii) Issues or complaints, if any, presented to the Tribunal about the character of C. - (iv) The fact that the Complainant was never charged in court, at all, for the offence he was initially suspected to have committed. - (v) Previous awards made by courts of law or the Tribunal of the Uganda Human Rights Commission in other cases or complaints with issues similar to the ones considered in the instant complaint. - (vi) The value of the money to be awarded for damages, taking into account its purchasing power under the current national economic conditions; as well as the time lag from the time when the violation was committed, and awards were made by courts or tribunal in the other cases cited, up to the time ofmaking this decision; - (viii) R's capacity to pay the awarded damages, taking into consideration the current national economic conditions and overall government revenue status.

During the hearing session of this matter on 8lh April, 2014 RC offered to settle the matter amicably as they could not call any defense witnesses to adduce evidence in rebuttal of C's evidence. C, on the instructions of the Tribunal, provided to RC his proposal for negotiations and during the subsequent hearing sessions, RC repeatedly reported to the Tribunal that their Regional Office was still waiting for communication from the Solicitor General in Kampala Head Office whom they expected to provide approval of the recommendation the regional office had submitted for authority to settle the matter amicably on the basis of what they had locally agreed with C.

However, by the time the matter was heard for the last time and adjourned for a decision on 14th December, 2017, almost three years later, R had not yet responded to C's proposal conclusively and therefore, they had not yet consummated and delivered a settlement with C.

I was therefore compelled to assemble and evaluate the evidence that had been adduced in this matter, while applying the relevant applicable law including the appropriate case law. Accordingly, whatever had been proposed by C for the sake and in the spirit of amicable settlement, has now been inevitably overtaken by my evaluation of the evidence that was adduced in this matter as already indicated, and amicable settlement is therefore totally abandoned. I have therefore also set aside any orders that had been issued orally at the last hearing ofthis matter.

In the case of BUSINGYE DAVID VS ATTORNEY GENERAL &ASIIMWE YASIN, Complaint No. UHRC/FPT/13/2006 at Fort Portal, the complainant was beaten while at Bulindi Police Post by policemen until his right leg got a fracture, and all this was done on the allegation of him having stolen a mattress. The Presiding Commissioner in this matter, former Commissioner Mariam Wangadya held that the complainant's evidence proved that he was severely beaten to the extent of sustaining a fracture of his right leg by Police Officers at Bulindi Police Post, and this was corroborated by medical evidence which was not challenged by the respondent. She therefore awarded the complainant Ug. Shs. 15,000,000= (Uganda hilling fifteen million only), as general damages in compensation for the violation of the Complainant's right of freedom from torture.

The assault that C in the instant matter was subjected to by the aforementioned policemen and its devastating effects on him as noted from the evaluated evidence in this matter, are very much comparable to the assault and its effects that the Complainant in the cited case suffered.

However, the aforementioned amount that was awarded to the Complainant in the aforecited case was ordered by the Tribunal on <sup>1</sup> llh September, 2011, about six and <sup>a</sup> half years ago. <sup>I</sup> must therefore take this factor into account, as I also take into account all the seven elements that I mentioned earlier on to be considered at this juncture; and I must do this alongside my consideration ofthe fact that R's side raised high C's hopes for an amicable settlement ofthis matter for nearly three years but in the end, failed to consummate and deliver the much promised settlement.

Accordingly, I am ordering higher quantum in this matter than what former Commissioner Wangadya ordered in the aforecited case thus, awarding C Ug. Shs. 16,000,000= (Uganda shillings sixteen million only) as general damages in compensation for the violation of his right as already established in this decision.

I therefore ordered as follows:

## **ORDERS:**

- 1. The complaint is wholly allowed. - 2. R (Attorney General) is ordered to pay to C, Asiimwe Charles a total sum of Ug. Shs. 16,000,000= (Uganda Shillings sixteen million only) as general damages in compensation for the violation of his right as ruled in this decision.

- 3. Interest at the rate of 10% per annum to be paid on the total sum of Ug. Shs. 16,000,000= (Uganda Shillings sixteen million only) calculated from the date of this decision until payment in full. - 4. Each party to bear their own costs. - 5. Either party may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision if not satisfied with the decision ofthis Tribunal.

So it is ordered.

VW '— SC **DATED AT FORTPORTAL ON THIS.... I.. Y.... DAY OF....<rk.. SAr.f?.^'J 2018**

**SIGNED BY:**

**DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER**