Balina Samuel v Attorney General (Complaint UHRC 50 of 2006) [2017] UGHRC 5 (4 December 2017)

Full Case Text

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# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA** COMPLAINT NO: UHRC/50/2006 BALINA SAMUEL ::::::::::::::::::::::::::::::::::::

#### AND

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

### **REFORE HON, COMMISSIONER JOSEPH A, A ETIMA**

#### **DECISION**

This complaint was lodged by Jacob Ouma, Swaib Nelly and Balina Samuel alleging that on 9th April 2006 they were arrested on allegations that they had stolen Col. Otema Charles wallet and taken by Col Otema's to Chieftaincy of Military Intelligence (CMI) where they were beaten severely while interrogated. That they were later taken to Central police station (CPS) Kampala where they spent a night and were taken back to CMI the following morning and subjected to more beatings.

However during the hearing the two Complainants Jacob Ouma and Swaib Nelly were struck off the complaint and Balina Samuel remained the only Complainant in this matter.

The Complainant Balina Samuel therefore contends that the actions allegedly committed against him by the Respondent's agents amounted to a violation of his right to freedom from torture, cruel, inhuman or degrading treatment or punishment of which he holds the Respondent vicariously liable.

### The issues of contention to be determined by the Tribunal are;

- 1. Whether the complainant's right of protection from torture or cruel, inhuman or degrading treatment or punishment was violated. - 2. Whether the Complainant is entitled to any remedies.

In determining these issues, the burden of proof lies with the person asserting that his or her rights have been violated, in this case, the Complainant. This is in line with Section 101 (1) of the Evidence Act. Cap 6 Laws of Uganda, which 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" and

### 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."

Before I proceed to determine the issues below I wish to note that this matter was heard before Commissioner F. M. Wangadya and the late Commissioner Thecla Kinalwa. The time I took over the matter the 1st complainant Jacob Ouma and 2nd complainant Nelly Swaib had been struck off after their demise. This decision is partly bases on the record of proceedings by my former colleagues.

I now turn to the issues.

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 Universal Declaration of Human Rights (UDHR), 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 of the International Covenant on Civil and Political Rights (ICCPR), 1996 absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

The African Charter on Human and Peoples' Rights (ACHPR) 1981 under Article 5 reiterates the total prohibition of violation of the same aforementioned right.

The Constitution of the Republic of Uganda 1995 under Article 24 prohibits subjection of anyone to any form of torture or cruel, inhuman or degrading treatment or punishment. This right is provided for as a non derrogable right under Article $44(a)$ of the same constitution.

Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)1984 defines torture to mean:

"...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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

The definition in Article 1 of the UNCAT has been applied by this Tribunal in the matter of Fred Tumuramye -and- Gerald Bwete & Others UHRC NO 264/1999, where Commissioner Aliro Omara spelt out the elements of torture ass:

- 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 - c) The act is inflicted by or at the instigation of or with the consent or acquiescence of a public $c$ official or other person acting in an official capacity.

The Complainant Balina Samuel testified that on 9th April 2006 at 6:30pm he was in the gym and Col. Otema came with his body guards and 30 minutes later he left the gym. He saw his body guards who came claiming that Col. Otema's wallet was missing and that Jacob Ouma was the most likely person who had stolen it. The Colonel ordered the body guards to search Ouma then later Col. Otema started slapping and kicking him and then they took him to CMI offices. The following day at around 8:30pm they took him to CMI offices where he found Jacob Ouma. He found four soldiers who asked him to produce the wallet and among them were Barigye and Mugume. They slapped him the whole night and told him to crawl on bottle tops and as they whipped him with bicycle locks. That as a result of the beatings, he suffered joint pains, sustained wounds in the knees and buttocks. That the following day, Jacob Ouma, Nelly and himself were tortured a fresh. They poured on them water, told them to crawl on bottle tops for around two hours. On 12th April 2006 they recorded statements and later released. He had $120,000/$ = in his wallet which had been taken by the soldiers, on release he went for treatment at ACTV.

During cross examination of Balina Samuel, he confirmed that from Kabira country club he was taken to CMI where he found his work mate Ouma Jacob and that he was beaten with bicycle locks while being asked for Col. Otema's money. They were beaten and ordered to remove their trousers and crawl on bottle tops while being beaten with bicycle locks. After beating him, he was put in the same room as Ouma and that the following day; they were made to make statements.

Swaib Nelly testified that on 9th April 2006 at 6:30pm while at Kabira country club, Col. Otema came with his body guards and later went to the gym. His boss Mr. Amit sent him to buy cigarettes, when he returned at around 7:00pm he heard Col. Otema complain about loss of money, \$1,000 and 2,000 pounds which he claimed had been stolen. That Col. Otema's body guards were already beating Ouma and they later took him to the barracks. On 11th April 2006 at 7:00am while he was at his work place, one of Col. Otema's guards took him to CMI offices at Mulago and on reaching there, the soldiers immediately started beating and asking him where he had put Col. Otema's money. He denied theft of the money and that he was beaten for approximately 10 minutes, later that evening Balina Samuel and him were released and told to

report the next day. He reported 3 times in total and that Col. Otema never beat him, he does not know whether Col's money was actually stolen and that he did not hear him order his guards to beat him and he assumed they acted on his orders. He sought treatment at Kibuli hospital and also went ACTV for medical checkup.

Jacob Ouma testified that on 9th April 2006 at 6:30pm while at Kabira country club where he worked as a sauna attendant, Col. Otema was one of their clients that day that used the sauna and claimed that his wallet had been stolen. Col. Otema called his guards who took him to the CMI offices in Mulago. The men at CMI started beating him with batons on the knees and ankles telling him to produce Afande's wallet if he wanted to survive; he denied any knowledge of the wallet. After that, he was locked up and made to kneel on bottle tops still being asked to produce the wallet. The following day at 9:00am, his workmates Swaib Nelly and Balina Samuel were brought and also tortured and later they were all made to write statements and released.

Dr. Paul Muwa stated that he was a medical practitioner at ACTV and on 1st June 2006, he saw Balina Samuel who complained of chest pain and impaired hearing in the right ear and occasional pain in the right wrist. When he examined him, he found that he had several dark scars on the left thigh and leg, on the right leg and wrist, he also had a swelling on the right ear and pain in the side ear and that in his opinion the injury to the ear resulted from blunt trauma. The scars could have been inflicted by a blunt object and the injury to the ear could cause deafness and that the medical report was admitted in evidence as exhibit one.

During cross examination of Dr. Paul Muwa, he stated that he personally examined the Complainant Balina Samuel on 1st June 2006 which was two months after the assault and that he had chest pain and ear infection and that what the Complainant presented and his findings had a strong relationship to the allegation of torture. He had several linear scars inform of lines on the leg and wrist which relate to his allegations of having been beaten with a bicycle lock. At the time of examining him, he was partially deaf.

Defence witness Col. Charles Otema testified that when the incident happened, he was in charge of UPDF Chieftaincy in the northern region and that day he was coming from Gulu and he had got allowances to travel to the Washington and he had received about 3,000 Euros which he had in his wallet when he went to Kabira country club gym. That when he started exercising he remembered that he had left his wallet in the trouser in the changing room. Jacob Ouma was around in the changing room as he was checking in his trouser and discovered his wallet was gone. He reported to Karen who was an executive employee of Sudir who called the police and they took the suspect. That he also reported at CMI but never followed up the case again since he was very busy. He later learnt that Ouma's colleague had bought a bicycle and built a house.

I find that the evidence of the Complainant are corroborated by the testimonies of Swaib Nelly and Jacob Ouma wherein they all state that they were arrested and detained at CMI. Jacob Ouma's testimony is consistent with that of Balina Samuel in regard to the nature of torture that while at CMI he was made to kneel on bottle tops while being asked to produce a wallet.

There is no doubt that the beatings that the Complainant was subjected to by CMI operatives, inflicted grave injuries which caused him physical pain and mental anguish.

It is also no doubt that the CMI operatives beat the Complainant deliberately and intentionally. In doing all these cruel, inhuman acts they were seeking to obtain information about a missing wallet. Their intention was to force the Complainant to confess that he actually committed the offence of theft. The CMI operatives used intimidating and coercive methods to obtain such information from the complainant. This therefore proves the second and third ingredients of torture that I mentioned earlier.

Finally, the CMI operatives in arresting the complainant were individually and severally carrying out their official duty of apprehending, investigating, interrogating and detaining suspected criminals. They did this both in their official capacity and also with the consent or acquiescence of their superiors and their employer on whose behalf they were acting. This therefore proves the fourth ingredient of torture under the CAT.

In the premises therefore, I have no other alternative but to accept wholly the evidence adduced by the Complainant's side to prove the allegation of violation of his right under consideration now. I therefore find and hold that on balance that the Complainant's right of freedom from torture cruel inhuman or degrading treatment or punishment was violated by the Respondent's agents.

## Issue two: Whether the Complainant is entitled to any remedies

In respect to this issue, the Complainant has proved to the satisfaction of the tribunal that his right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents. Balina Samuel is therefore entitled to a remedy in form of compensation by the Respondent. This is in line with Article 53(2) (b) & (c) of the **Constitution**, which 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."

In order to determine the suitable quantum of compensation to be awarded for the violation, I will take into consideration previous awards in similar cases. I will further consider the fact that right to protection from torture, cruel, inhuman and degrading treatment as an absolute right under Article 44(a) of the Constitution of the Republic of Uganda 1995.

In the case of Rwinkesha W. K Vs Attorney General. UHRC/FP/050/2003. The Complainant sustained grievous injuries that included a broken rib and broken skull in addition a multiple of other injuries. The Presiding Commissioner awarded the Complainant U. Shs10,000,000= (Uganda Shillings Ten Million) for the violation of his right to freedom from torture, cruel, inhuman or degrading treatment or punishment.

In the instant case the expert witness Dr. Paul Muwa stated that, when he examined the Complainant Balina Samuel, he found that he had several dark scars on the left thigh, leg and wrist, he also had a swelling on the right ear and pain in the side ear and that in his opinion the injury to the ear resulted from blunt trauma. The scars could have been inflicted by a blunt object and the injury to the ear could cause deafness. I therefore find Ug. Shs 8,000,000= (Eight million Uganda Shillings) adequate compensation for the violation of Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. I so award.

### **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (Respondent) is ordered to pay to the Complainant Balina Samuel a sum of Ug. Shs. 8,000,000= (Eight million Uganda shillings), as general damages for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. Interest at the rate of 10% per annum to be paid on the total sum of Ug. Shs. 8,000,000 (Eight million Uganda shillings only) calculated from the date of this decision until payment in full. - 4. Each Party to bear their own costs.

Either Party may appeal to the High Court of Uganda within 30 days from the date of this decision if not satisfied with the decision of this Tribunal.

DATED AT KAMPALA ON THIS $\ldots \ldots 2017.$ . DAY-OF. JOSEPH A. A. 'ETIMA PRESIDING COMMISSIONER