Bikooba Maate and 2 others v Attorney General (Complaint No UHRC/FPT/06/2008) [2019] UGHRC 27 (11 September 2019)

Full Case Text

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THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT HOIMA COMPLAINT NO UHRC/FPT/06/2008

1. BIKOOBA MAATE 2. KYALIGONZA JOSEPH:::::::::::::::::::::::::COMPLAINANTS 3. KYAKIMWA EVANIS

- AND -

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::RESPONDENT

(BEFORE HON. COMMISSIONER MEDDIE B. MULUMBA)

## DECISION

Bikooba Maate, Kyaligonza Joseph and Kyakimwa Evanis (the Complainants) all residents of Kakooga Village, Nyantonzi Parish, Mpeefu Sub County, Kibaale District allege that on 6lh June 2004, Uganda Peoples' Defence Forces (UPDF) soldiers attached to UPDF Kasubi army Detach who were under the command of 2nd Lt Maregana Fred raided Bikwara Sub County. That the UPDF were carrying out investigations in a murder case that had occurred at Kinyara. That during the

investigations, the UPDF soldiers arrested them and beat them severely while questioning them about the murder case. That they were later taken to Kyaterekera but along the way they were dipped in a well which was by the road side. That upon reaching Kyaterekera, they were taken to Kagadi Police Post where they were briefly detained for one night until morning when they were taken to Kagadi Hospital where they were admitted for two weeks.

The matter came up for hearing before former Commissioner Stephen Basaliza. The following issues were framed for determination;

- i. Whether the Complainants' right to freedom from torture, cruel, inhuman and degrading treatment or punishment was violated? - ii. Whether the Respondent is vicariously liable? - iii. Whether the Complainants are entitled to any remedy?

Bikooba Maate (lsl Complainant), Kyaligonza Joseph (2nd Complainant) and Kyakimwa Evanis (3rd Complainant) testified in person and called one witness Murangi Atwooki Isaaya CW I. The Respondent did not call defence witnesses. Evidence in this matter was heard by former Commissioner Stephen Basaliza. The matter was reallocated to me at the conclusion

stage for a decision. It is therefore from his record of proceedings that I arrive at this decision.

ISSUE I: Whether the Complainants' right to freedom from torture, cruel, inhuman and degrading treatment or punishment was violated?

The 1st Complainant' s testimony is that the 3rd Complainant is his wife. At around 2:30 pm on 6lh June 2004 while he was at his home he heard people outside his house asking the 3rd Complainant about his whereabouts. The 3,d Complainant informed the people that he was inside the house. He then went outside his house to find out which people who were looking for him. As soon as he went of his house, he found about 17 armed uniformed UPDF soldiers outside his house. The soldiers tied him and the 3rd Complainant with ropes and also beat other people such as Sunday Joseph who had gathered at his home to see what was taking place. At the time he did not know why he was being arrested but later learnt that he was being arrested on allegations of cattle theft. During his arrest, he was beaten with sticks on the legs, hands and a blunt knife was also used to pierce through his left hand. He was beaten for about 4 hours and later taken by the DPC - Kibaale District to Kagadi Hospital

for treatment. He regained conscious after 5 days. As a result of the beatings, he still feels chest pain and feels "bad" when he stands. He later went to Mulago Hospital for further treatment where it was found that his internal organs had been damaged.

In cross examination he stated that he was in his house sleeping when the 3rd Complainant was being beaten. A solider used a bayonet to pierce him while on the way to Kyaterekera.

The 2nd Complainant testified that on 6th June 2004 on his way home from church, he met two UPDF soldiers attached to Kasubi army detach. The soldiers asked him who he was. Upon replying that he was Kyaligonza Joseph, one solider kicked him and removed his shirt and used it to tie his face. His arms were also tied behind his back with a rope. He was beaten from around 2 - 3 pm and later dumped at Kyareterera Police Post. He was also hit on the mouth with a stick and as a result he lost 4 teeth. He was arrested together with the 1st Complainant, Lwamafa Muhereza and John Diisi. He was later taken to Kagadi Hospital where he was admitted for two weeks. As a result of the beatings, he is now weak, has

scars on his stomach and left shoulder and cannot carry out heavy work.

On cross examination, he stated that he was able to see the people who beat him because the shirt which was used to cover his face was taken off.

CW I testified that at around 3:00 pm on 6lh June 2004 while he was at Katerere Town Council seated outside his shop, he saw about 8 soldiers arresting the 1st and 2"d Complainants and others.

The 3rd Complainant' s testimony is that the 1st Complainant is her husband. At around 2:00 pm on a date and month he could not recall but in 2004 uniformed UPDF soldiers went to their home. The UPDF soldiers asked her about the whereabouts of her husband. She told them that the 1st Complainant was in bed. The soldiers went into the house and dragged the lsl Complainant out of the house and started beating him all over the body with sticks. She was also beaten by 5 soldiers for about 10 minutes with sticks on the shoulders, back and around the pelvic area. She does not know the reason why they were beating them. The 1st Complainant was later taken to Kyaterekera Police Post but

she feared following them. After two weeks she later found him admitted at Kagadi hospital. He was in severe pain with a swollen body and she was advised to buy him some drugs. He was unable to stand and could only take soft drinks. He had been arrested over a land dispute. As a result of the beatings, the 1st Complainant is no longer sexually active. She has as a result developed kidney pains and she has been on treatment at Kyaterekera Health Centre HI.

Uganda is a state party to the key international human rights treaties on freedom from torture or cruel, inhuman and degrading treatment, namely the International Covenant on Civil and Political rights, Article 7 and the African Charter on Human and People' s Rights Article 5. Article 24 of the Constitution of the Republic of Uganda 1995, "the Constitution" , guarantees that "No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment," which Article 44 recognizes as a non-derogable right *(Salvatory Abuki and Another SCCA No. 1 of 1998, Hon. Okupa Ellijah & 2020 Others Ks Attorney General & 3 Others HCMC 14 of 2005).*

The Tribunal is mindful of the cardinal principle that the Complainants have the duty to prove the allegations against

the Respondent on a balance of probabilities *(Byaruhanga Charles and Attorney General UHRC/FPT/09/2007; Mwanjuzi Ben and Attorney General UHRC/MBA/12/2007; Annet Beroto and Attorney General UHRC/157/2005; Okuda Clement and Attorney General UHRC/MRT/15/2004; Barugahare Abdallah and Attorney General UHRC/MBR/026/2008).*

From the evidence on record, the 1st Complainant was arrested by UPDF soldiers on 6lh June 2004 from his home on allegations of theft of cattle. He was beaten with sticks on the legs, hands and a blunt knife was used to pierce through his left hand. The 2nd Complainant was arrested on 6th June 2006 and his arrest, the UPDF soldiers kicked him on the back.

Article 24 of the Constitution seeks to protect citizens from seven different conditions namely;- torture; Cruel treatment; Cruel punishment; Inhuman treatment; Inhuman punishment; Degrading treatment; Degrading punishment (Attorney General and Salvatori Abuki SCCA 1 of 1998).

Torture is an aggravated or particular serious form of illtreatment. On the other hand to qualify as cruel, inhuman or degrading treatment must reach a " 'minimum level of severity,' the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim *(Huri~ Laws v Nigeria, AfrCommHPR, Communication No. 225/1998).*

The Complainants did not adduce medical evidence to support the evidence of assault. That notwithstanding cogent evidence adduced can do. Medical evidence helps to prove the gravity of assault *(Fred Kainamura & Others vs Attorney General & Others 1994 KALR 92; Baluku Steven and Attorney General UHRC/FPT/123/2003).* In absence of any evidence in rebuttal, the evidence of the Complainants' is deemed to have been admitted *(Senyonga Joseph and Attorney General UHRC/570/2001).* The acts inflicted on the Complainants consisted acts of torture. The testimony of the Complainant and his witnesses was never challenged by the Respondent. There is no doubt that the Complainants were subjected to acts of physical torture during their arrest, they were subjected to severe pain *(Kagambo Magoba John and National Forestry Authority UHRC/100/2007; Okema John Francis and Attorney General UHRC/GLU/08/2004; Sserwanja Disan and Attorney General UHRC/MSK/40/2011; Senyonga Joseph and Attorney General UHRC/570/2001).* The acts against the

Complainants amounted to violation of their right to freedom from torture.

I therefore hold Issue I in the affirmative.

ISSUE II: Whether the Respondent is liable?

A master is liable for tortuous acts committed by his servant in the course of his employment *(Paul Byekwaso vs Attorney General CACA 10 of 2002; Muwonge vs Attorney General [1967] EA 18; Photo Productions Ltd vs Securicor Transport limited [1978] ALLER 146; Thunderbolt Technical Services Limited vs Apedu Joseph & Kk Security (U) Limited HCCS 340 of 2009; Paul Byekwaso vs Attorney General CACA 10 Of 2002).* An employee is said to be in the course of his employment if he/she is doing that which they are employed to do even if the employees are adopting a wrong method of doing the act or doing the act in a wrong manner *(Bagenda Dyabe Tommy 7s Pioneer Easy Bus Limi ted HCCS 36 of 2016).*

In the instant case, the testimony of the Complainants' is uncontroverted to the effect that the soldiers who subjected them to acts of physical torture belonged to the UPDF. They were in army uniform and armed with batons. I have not found

any evidence to suggest that the UPDF soldiers were on a frolic of their own. On basis of the evidence availed to tribunal, I find that the Complainants have proved on the balance of probabilities that the UPDF subjected him to acts of torture in the course of their employment for which the Attorney General is vicariously liable *{section 3 (1) (a) of The Government Proceedings Act).*

ISSUE III: Whether the Complainant is entitled to any remedy?

Having found that the Complainants' right to freedom from torture was violated, I further find as a result they are entitled to a remedy *(Barekye James and Attorney General UHRC/MBA/84/2005; Elalu Medi Sebi and Attorney General UHRC/SRT/368/2003).* In assessing the quantum of general damages, I will take into consideration that acts of torture are non-derogable and the effect/severity of the acts on the Complainant *(Pte Enock Ngomya and Attorney General UHRC/405/2004; Masiko Augustine and Attorney General UHRC/FP/60/2007).*

It is trite law that general damages are compensatory in nature, and are intended to make good to the sufferer as far as money can do so, the loses he or she suffered as the natural result of the wrong done to him *(see Okello James vs Attorney General HCCS 574 OF 2003).*

The 1st Complainant testified that as a result of the beatings he still feels chest pain, feels bad when he stands. The 3rd Complainant testified that as a result of the beatings, the 1st Complainant is no longer sexually active. The 3rd Complainant testified that she developed kidney pains. In absence of medical evidence or expert witness, the tribunal finds it difficult to full ascertain the gravity of the injuries sustained by the Complainants.

In the circumstances, the lsl Complainant - Bikooba Maate is awarded a sum of UGX 4,000,000/- (Uganda shillings four million only), the 2nd Complainant - Kyaligonza Joseph is awarded a sum of UGX 3,000,000/= (Uganda Shillings three million only) while the 3rd Complainant Kyakimwa Evanis is awarded a sum of UGX 2,000,'000/= (Uganda Shillings two million only) as general damages for violation of their right to freedom from torture. .

## ORDERS

Accordingly, the Tribunal orders as follows:

- (1) The Complaint is allowed. - (2) The Respondent is ordered to pay the 1st Complainant Bikooba Maate a sum of UGX 4,000,000/= (Uganda Shillings four million only) as general damages for the violation of his right to freedom from torture as protected under Articles 24 and 44 (a) of the Constitution of the Republic of Uganda. - (3) The Respondent is ordered to pay the 2nd Complainant Kyaligonza Joseph a sum of UGX 3,000,000/= (Uganda Shillings three million only) as general damages for the violation of his right to freedom from torture as protected under Articles 24 and 44 (a) of the Constitution of the Republic of Uganda. - (4) The Respondent is ordered to pay the 3rd Complainant Kyakimwa Evanis a sum of UGX 2,000,000/= (Uganda Shillings two million only) as general damages for the violation of her right to freedom from torture as protected under Articles 24 and 44 (a) of the Constitution of the Republic of Uganda.

(5) The above total sum of UGX 9,000,000= (Uganda Shillings nine million only) shall attract interest at 10% per annum from the date of this decision till payment in full.

(6) Each party shall bear its own costs.

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

I so order.

Dated at H0IMA this ...day of ••• — •L^- 2019.

MEDDIE B. MULUMBA. PRESIDING COMMISSIONER