Baiwula Richard v Attorney General (Complaint UHRC 45 of 2006) [2017] UGHRC 1 (22 November 2017)


THE REPUBLIC OF UGANDA

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

## COMPLAINT NO. UHRC/JJA/45/2006

## **BAIWULA RICHARD (ADMINISTRATOR OF** THE ESTATE OF THE BUYINZA:::::::::::::::::::::::::::::::::::: (CHARLES)

#### **AND**

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## BEFORE HON. COMMISSIONER STEPHEN BASALIZA) DECISION

This complaint was brought to this Commission by Buyinza Charles against the Respondent seeking compensation for alleged violation of his right to protection from torture or cruel, inhuman and degrading treatment or punishment. He alleged that on 18<sup>th</sup> August, 2002 at 11.00 hours, he was beaten by officers of Special Revenue Protection Services (SPRS) - URA attached to Bugoto landing site for allegedly practicing illegal fishing. That he was beaten with canes, stones, wires and bicycle wire locks on the head, his right eye was shattered resulting into its removal at Jinja Regional Referral hospital. He sought compensation for having lost his eye, and the injuries he sustained on his back and neck.

The Respondent being represented by Ms. Jane Francis Nanvuma denied liability. Buyiza Charles passed away before judgment was delivered and hence was substituted by Baiwula Richard as the Complainant.

At the beginning of the hearing, the Respondent's Counsel raised an objection that this complaint was wrongly brought against the Attorney General. She contended that SPRS was part of Uganda Revenue Authority (URA), a statutory body capable of suing and being sued in its own name. She therefore prayed that Attorney General be substituted with URA as the party.

Commission Counsel Ms. Jane Francis Nanvuma in guiding the Tribunal submitted that the information available showed that SPRS was an organ of Government and only attached to URA for enforcement purposes. The SPRS which got facilitation from Government remained a State organ and therefore the Attorney General was rightly sued.

During the hearing of 2<sup>nd</sup> June 2016, the tribunal accepted the prayer by Andoi Christine the 2<sup>nd</sup> Complainant to be struck off from this matter.

#### Issues:

The issues for determination by this tribunal are:

- Whether the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or $\mathbf{L}$ punishment was violated. - Whether the Respondent is vicariously liable. $\mathbf{I}$ - Whether the Complainant is entitled to remedies $\mathbf{H}$

Before I proceed to resolve the above issues, I wish to note that the Respondent only cross examined the victim Buyiza Charles and his witnesses buy neither called witnesses nor filed submissions in defense. However there was cross examination the Complainant and his witnesses.

This however did not take away the Complainant's duty to prove his case against the respondent to the satisfaction of the tribunal.

## Under S.101 (1) of the Evidence Act Cap 6;

"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"

#### And under S.102 of the Evidence Act (supra);

"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 Complainant's right to protection from torture, cruel, inhuman and degrading treatment was violated.

Torture is defined by the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT), 1984 to mean

"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 discretion 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 Macmillan English Dictionary for Advanced Learners, New Edition at page 1582 defines 'torture' as -

"Extreme physical pain caused by someone or something, especially as a punishment or as a way to make someone say something"; or

"A mentally or physically uncomfortable feeling."

From the definition of 'torture' above, the actions complained of must be deliberate and carry with them an aspect of intent and ill will or malice with the purpose of procuring compliance of some sort.

Torture is outlawed by Article 24 of the Constitution of the Republic of Uganda and various international human rights instruments to which Uganda is signatory (See Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR), and Article 7 of the International Covenant on Civil and Political Rights (ICCPR).

It is also emphasized in ATTORNEY GENERAL VS SALVATORI ABUKI CONSTITUTIONAL APPEAL NO.1/1998 that freedoms enshrined under Article 44of the Constitution, which include freedom from torture, cruel, inhuman and degrading treatment or punishment are non derogable.

The actions allegedly committed against Buyinza Charles by officials of SPRS would amount to 'torture' if proved as such,

The key ingredients of torture, cruel, inhuman or degrading treatment or punishment were identified by Commissioner Aliro Omara in his decision in the case of FRED TUMURAMYE VS. GERALD BWETE AND OTHERS, UHRC/264/1999 as

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

In this case, Buyinza Charles testified that on 18<sup>th</sup> August, 2002 at 11.00hours, while he was at Jaguzi, he met school children running and when he stopped he was told to go to the Chairman's place by some soldiers dressed in casual clothes. He stated that many people had gathered there. He added that;

"At first we did not know but later they the soldiers told us they were looking for people doing illegal fishing. Afterwards my eye was beaten and was bleeding. I heard them say that I go to the landing site of Bugoto. They beat my back, head and eye with canes. I later went to Jinja hospital the following day".

The Buyinza's testimony is corroborated by the testimony of **CW2, Balikowa Peter**. He stated that on 18<sup>th</sup> August, 2002 at about 11.00 a.m. while they were at Kaziru Landing with Mafabi Ali, Kozala Karim and Kiiza Swaibu playing "mweso", they heard gun shots.

He added as follows:

"We wanted to run and all the directions there were gun shots. The soldiers ordered us to go and gather at the Chairman's place. We went and found other soldiers standing there and whoever arrived was told to lie down. Buvinza was one of those running to join us. He got us lying down. The soldiers started to beat us with bicycle spikes, asking us about the unlawful fishing

We were about 40 in number. Later I heard Buyinza complaining that his eye had been hit. I glanced at him and saw blood oozing. Gidudu ordered us to sit upright. He told us that those who were injured could go to Bugoto landing site where they had their base. We lifted Buyinza to Jaguzi Health Centre II. The Midwife told us to go to Jinja hospital because of serious matter. His family member brought him to Jinja. He was away for a month. They told us that his eye was removed".

On cross-examination, CW2 further testified as follows;

"I heard his voice crying. Yes I know Gidudu. He ordered us to come and sit up right later".

In corroboration of the above testimonies is that of CW3, - Ali Mafabi who stated that on 18<sup>th</sup> August, 2002 at around 11.00 a.m. when they had gone to dig, they heard gunshots. That he was with his wife at Kaziru. He stated that he found him at Chairman's place. The soldiers told him to lie down. He stated that he saw them beating the Complainant with bicycle locks and sticks; they wanted them to go to Bugoto. He stated that Buyinza was later lifted to go to Jaguzi Health Centre 2 where he where the medical personnel told them to go to Jinia hospital.

Dr. Balina Nseko Daniel, an Ophlamogist (Eye Specialist)at Jinja Regional Referral Hospital testified that Buyinza Charles was received at the hospital complaining of having been assaulted.

He further testified.

"I have not examined him but we went to medical official record. Fortunately, we found the records when he was admitted. The date and time of discharge, we could not trace his file since it was 2002. I wrote back that this patient had been admitted but seemed to have been assaulted. We requested the complainant to come and we re-examine. Unfortunately when he came he did not have the records. When we examined it tallied with admission diagnosis, ruptured eye. We found information that the eye was proposed to be removed but he refused. He was kept on the ward for two consecutive weeks with a painless blind eye. When he came for examination the eye had shrunk and blind".

He further explained that the injury was automatic rapture of the eye - badly ruptured and that they normally advise removal but the complainant refused. That when the eye is ruptured, the fluids will come out and the tissues will get damaged and the eye shrinks. The eye cannot function. The other eye was normal. He concluded by stating the loss of one eye is compensated by the other eye. However, there are activities he cannot do like driving, pilot, soldier.

The medical reports dated 8<sup>th</sup> April, 2013 and September 11<sup>th</sup> 2013 respectively were tendered in as Exhibits and marked **Exhibits (b) and (c)**

Upon cross examination, Dr. Balina Nseko Daniel stated that the Complainant went to Jinja hospital in August 2002 after injury on his right eye which was fractured. He was admitted to Jinja hospital on 21<sup>st</sup> August 2002. The medical personal suggested that the eye be removed but he declined and preferred the eye to be treated conservatively. After two weeks he was discharged. The eye was shrunken, painless and blind.

It was very severe injury caused by trauma by a strong object. He stated that even if the eye was treated it would not recover as it was an eye already lost.

I find the testimony of Dr. Balina Nseko Daniel to be consistent with the facts as stated by the witnesses during the hearing.

From the above evidence, I find that the ingredients of torture have been proved. Buyinza was severely beaten by, SPRS official as to punish him for allegedly carrying out illegal fishing; a result of which he suffered injuries that led to the loss of his eye. The beating of Buyinza Charles by officials of SPRS was completely unjustified and therefore I condemn it as a violation of

Buyinza Charles' right to freedom from torture or cruel, inhuman and degrading treatment or punishment.

Issue 2: Whether the Respondent is vicariously liable for the violation of the Buyinza Charles' right to freedom from torture or cruel, inhuman and degrading treatment or punishment.

As resolved in the above issue, there was a violation of the Buyinza Charles' right to freedom from torture or cruel, inhuman and degrading treatment or punishment contrary to Article 24 of the 1995 constitution of Uganda.

According to Article 119(4) (c) of the Constitution and Section 10 of the Government proceedings Act, the Attorney General is mandated to represent Government in any civil proceedings to which Government is party.

In the case of MUWONGE vs ATTORNEY GENERAL, (1967) (EA) 17, 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 acts for which the master is to be held liable.

Similarly is the case of **JONES vs TOWER BOOTS CO. LTD (1967) ALL ER 40B, Court held that** an act is within the course of employment if it is either:-

- (1) a wrongful act authorized by the employer, or - (2) a wrongful and unauthorized mode of doing some act authorized by the employer.

In the instant matter this Tribunal having resolved SPRS was a government organ and only attached to URA for enforcement purposes, it follows that the Attorney General vicariously liable for their actions.

## **Issue 3. 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 $order -$

- $(a)$ - payment of compensation; or $(b)$ - any other legal remedy or redress." $(c)$

The basic purpose of damages is to put the victim in the position he would have been had he not suffered the wrong. (DR. DENIS LWAMAFA -V- ATTORNEY GENERAL C/S NO.79/1983; GEORGE PAUL EMENYU & ANOTHER-V-ATTORNEY GENERAL 109/1994 VK.

I shall also take into consideration the principle that was upheld in the case of **MATIYA BYABALEMA AND** OTHERS vs UGANDA TRANSPORT COMPANY, SCCA, 10/193, in which His Lordship Justice Odoki JSC held that:

Courts ought to assess the amount of damages taking into account the current value of the money in terms of what goods and services it can purchase at present.

In this case, the right is issue is a non derogable under the Constitution. The injuries suffered caused Buyinza Charles permanent damage to the eye and hence suffered not only physically but also, mentally (psychologically) and socially. Though it is the expert opinion of **Dr. Balina Nseko Daniel** that due to the loss of the eye there are activities like driving and piloting that Buyinza could not do. However I note that the loss of these opportunities has long been overtaken by his death.

The above notwithstanding, I find that the deceased's estate's legal representative (now Complainant) is entitled to compensation for the violation of his right to protection from torture or cruel, inhuman and degrading treatment or punishment. I therefore deem that a figure of $Ug. Shs 20$ , 000,000/ $\approx$ (Twenty **Million Uganda Shillings)** is such adequate compensation. I so award.

## ORDER:

- $(i)$ The Complaint is allowed. - $(ii)$ Respondent is ordered to pay the Estate of the Late Buyinza Charles The a sum of **U. Shs20,000,000/≃** (Twenty Million Uganda Shillings) as general damages for violation of his right to protection from torture or cruel, inhuman and degrading treatment or punishment.

The sum **U. Shs 20,000,000= (Twenty Million Uganda Shillings)** will carry interest at court rate from the date hereof until payment in full.

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

Dated at Jinja this Dam day of $\frac{2017}{\text{2017}}$ .

STEPHEN BASALIZA PRESIDING COMMISSIONER