Biryamondi Mohammed v Attorney General (Complaint UHRC 4 of 2012) [2017] UGHRC 7 (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/4/2012**

# BIRYAMONDI MOHAMMED ::::::::::::::::::::::::::::::::::: **AND**

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

## (BEFORE HON. COMMISSIONER JOSEPH A. A ETIMA)

#### **DECISION**

The Complainant Biryamondi Mohammedalleges that he was arrested on allegations o robberrywhile on duty at Jinja road police station on 14th June 2006. He was detained for four days from 14th to 17th June 2006 after which he was taken to a safe house in Kololo where he was put in a poorly ventilated room without any food or drinks. On 17th he was taken to the CMI headquarters "torture chamber" where he was stripped naked, forced to kneel on soda bottle tops, five on each knee side while carrying 10kgs of stones in each hand during which he was hit on the knee and ankle joints, hands and legs. Due to the intense beatings, he collapsed into comma. He was later taken to Jinja road police station but the police officer on duty refused to book him for fear that he may die in the cells because of his condition since he could neither talk nor sit. He further alleges that he was taken back to Kololo where he spent one night in a poorly ventilated room and on 18th June 2006, he was transferred back to Jinja road police station and further detained until 22nd June 2006 when he was produced in Nakawa court charged with robbery and remanded to Luzira Prison. The Complainant contended that the actions committed against him by the Respondent's agents amounted to a violation of his rights to personal libertyand freedom from torture or cruel, inhuman or degrading treatment or punishment for 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's right to personal liberty was violated - 3. 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, who in this case is 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."

#### 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 resolve the above issues, I wish to note that the Respondent did not enter appearance throughout the five tribunal hearings held. The absence of the Respondent is therefore regarded as waiving of his right to put up a defence.

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 24prohibits 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.

Torture is defined by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (UNCAT) under Article 1to 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-GeraldBwete &Others UHRC NO 264/1999, where Commissioner AliroOmara spelt out the elements of torture as;

- 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.

I shall therefore look for proof of ingredients of torture before making my decision.

The Complainant Biryamondi Mohammad testified that on 14thJune 2006 while on duty at Jinja road police station he was called to the DPC's office where he found the DPCand other people and asked whether he knew the people in the DPC's office but responded negatively. He was informed that they were from JATT and that he was under arrest on charges of robbery. He denied the charges but he was still handed over to JATT, blind folded and driven to a safe house in Kololo. Within the safe house, he was put in a room with no ventilation, no food and water for a period of 3 days. He added that he could not even communicate with his family who did not know his where about. On the third day, he was taken to CMI along Kitante road where he was asked again whether he was involved in the robbery so that nothing could be done to him but still denied the allegations. After denying, he was told to strip off his clothes and remain in the under garments, they started beating him with sticks and metal bars on the joints, knees and back; then they brought bottle tops for sodas and beers and he was forced to kneel on them and he was also forced to carry stones 10kgs on either sides of his hands as he was being beaten. He could not hold the stones any longer so he threw them down and ran to the commander and told him that he knew nothing but he was still forced to kneel on the bottle tops and forced to carry stone after which he became unconscious. That he regained his consciousness at Jinja road police station, on 17th June 2006. One of his relatives Logose Kilendo visited him and brought him milk and a chapati then after that he was driven back to the safe house in Kololo and detained with other people. The following day 18th June 2006 he was taken back to Jinja road police station where he was detained until 22nd June 2006 when he was produced in Nakawa court. He further stated that he was charged with robbery and remanded to Luzira upper prison for a period of 18 months after which he was released on bail. He stated that the first treatment he received was in Luzira prison after the torture and on release, he visited the office of the Uganda prisoner's aid foundation that referred him to ACTV for further treatment but still felt pain in the legs.

The Complainant's first witness, Dr. Edraku Immaculate stated that she was a medical officer practicing with ACTV. That Mohammad went to their office in June 2008 after being referred by Uganda Prisoners Aid Foundation. His major complaints were general body pain, back ache, head ache and sleepless nights for 2 years. When she examined him, her findings were; he was in a fair general condition, he was depressed, had high blood pressure, tenderness in the knee joints and around the stomach. He had post traumatic stress disorder, peptic ulcers, anxiety disorder and required treatment which she accorded. The doctor concluded by stating that the physiological symptoms had a degree of support to the torture, 25% degree of permanent disability because he had some physical pain. The medical report from ACTV dated 26th April 2012 was admitted in evidence as a Complainants' exhibit CX1.

The second Complainant's witness Wetonyi Moses stated that on 22ndJune 2006 while in Luzira upper prison, Biryamondi Mohammad was brought in the ward and that the time he came, he had swollen legs, joints and hands and he was not able to move. He asked him what had happened to him and he told him he had been tortured by CMI. That the following day on 23rd June 2006 in the morning, Biryamondi fainted and he was taken to Dr. Katuraki, a doctor in prison.

The third Complainant's witness Mondi Majid, stated that in July 2006 he received a phone call from Kampala informing him that Mohammad had been arrested. He went to check on him at the operation station but was told to wait and that he had been taken somewhere. After 3 days he went back but he never saw him; and on the 5th day he went back and found him at Jinja road police station in a very bad condition. He hadswollen legs, he could not eat or seat and he was requested by the police to buy him drugs. The last time he went to check on him, he was being taken to court and he was remanded. After one year, he got him a lawyer and he was granted bail.

I find the testimonies of the witnesses corroborate the Complainant's testimony that he sustained severe injuries as a result of the beatings and the cruel and inhuman acts inflicted on the Complainant. The medical report CX1 showed the injuries which were sustained by the Complainant and these injuries matched his body parts that had been beaten. There is no doubt that the beatings by JATT operatives caused the Complainant grave injuries, very severe physical pain and mental anguish, to the extent that even after two years after the incident occurred, he still had pain and the degree of permanent disability at 25%.

It is also no doubt that the JJAT operatives beat the Complainant deliberate and intentionally. In doing all these cruel, inhuman and barbaric acts they were seeking to obtain information about the alleged robbery. Their intention was to force the Complainant to confess that he actually committed the offence of robbery. The JJATToperatives 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 JJAT operatives who arrested the Complainant at Jinja road police station beat him up while he was in their custody, they were therefore 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. I therefore find and hold that on balance, that the Complainant's right of freedom from torture was violated by the Respondent's agents.

# Issue Two: Whether the Complainant's right to personal liberty was violated

The right to personal liberty is a positive right protected by human rights law at International and Regional levels as well as the Constitution of the Republic of Uganda 1995.

The International Covenant on Civil and Political Rights (1966) under Article 9(1) provides that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.

Further Article 9 (3) of the same Convention provides that everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release

The African Charter on Human and People's Rights provides under Article 6 that every individual shall have the right to liberty and to the Security of person. No one may be deprived of his freedom except for reasons and conditions previously laid down by the law.

Article 23 of the Constitution of the Republic Uganda 1995 provides for the protection of personal liberty.

Article 23 (1), in particular, caters for circumstances under which a person can be deprived of Article 23 (1) (c)specifically provides that a person's right to the right to personal liberty. personal liberty may be deprived for purpose of bringing that person before a court in execution of the order of a court orupon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

Furthermore, Article 23(4) (a) and (b) of the Constitution are to the effect that a person arrested or detained for the purpose of bringing him or her before a court in execution of an order of court or upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall if not earlier on released be brought to court as soon as possible but in any case not later than 48 hours from the time of his arrest. This same legal requirement is explicitly stated under Section 25 of the Police Act Cap 303.

In Makomberedze Vs. Minister of State (security) [1987] LRC (Const) 504, the High Court of Zimbabwe described the right of the individual to liberty as one of the pillars of freedom in a democratic society.

In WintwerpVs The Netherlands (1979 -80) 2 HRR 387 it was stated that no one shall be deprived of his or her liberty save in a limited number of circumstances which must be in accordance with a procedure prescribed by law.

The Complainant testified that he was arrested on 14th June 2006 and taken to Kololo where he was detained for four days and then taken back to Jinja road police station on 18th June 2006 where he was detained until 22nd June 2006 when he was finally produced in Nakawa court and remanded. The Complainant's statement was corroborated by his witness Mondi Majid when he stated that on a date he could not recall he received a phone call that Mohammed had been arrested he went to his operation station but did not find him and that he kept going back until the $5th$ day when he saw him at Jinja road police station.

The Commissionunder Article 52(1) of the Constitutionis mandated to carry out independent investigationsinto alleged human rights violations. The Commission's investigation team reviewed the lock up register of Jinja road police station which showed that the Complainant was booked in on 17th June 2006 until 22nd June 2006 when he was produced in court. This corroborates the Complainant's testimony that he was produced in court on 22nd June 2006. Additionally in the response to the allegation from the CMI head human rights desk to the Region human rights officer, CMI confirmed that the complainant was arrested on 14th June 2006 and detained at Jinja road police station and later forwarded to CMI for joint interrogation since he was suspected for being in possession of a gun sourced from the army. That all this was done within forty eight hours.

It is therefore my finding that the Complainant was arrested and detained from 14th June 2006 to 22nd June 2006, without being produced in court. Consequently by virtue of the provisions of Article $23(4)(b)$ of the Constitution, his detention was excessive therefore violating his right to personal liberty.

According to Article 119 of the Constitution, the function of the Attorney General among others is to represent the Government in court or any other legal proceedings to which the government is a party.

This complaint implicates the Uganda Police Force and CMI/JATT, agents of government as the perpetrators of the violation of the Complainant's right. The Respondent is therefore vicariously liable for the actions of the state agents who in the course of their duty to detect and investigate crime, arrest and detain suspected criminals violated the Complainant's rights.

Wherefore according to the above findings, I hold that the Respondent's agents violated the Complainant's rights and hence the Respondent is vicariously liable for the violation.

## **Issue No. 3:** Whether the Complainant is entitled to any remedies.

Art 53(2) (b) of the 1995 Constitution is to the effect that the Commission, if satisfied that there has been an infringement of a human right or freedom, shall order for redress which may include compensation.

In Christopher Ssajabi Nsereko Vs Attorney General UHRC No.112/99 Commissioner F. Mariam Wangadya observed that indeed human rights and freedoms would serve no purpose if their violations did not attract redress to the victims.

Furthermore, taking into account the case of Matiya Byabalema and others Vs Uganda Transport Company SCCA No 10 of 1993 where it was stated that "courts (in this case, the tribunal) ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present"

#### a) Violation of the right to personal liberty

In order to determine the suitable quantum of damages to be awarded for the violation, I will take into consideration, the number of days in illegal detention and previous awards in complaints similar to the instant one and assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present.

In Bakaliraku Vincent & Anorther -and- Attorney General Complaint No. UHRC 316/2004, it was held that it is the practice of this tribunal, referring to precedents of High Court, to award complainants U. Shs2,000,000= (Two million Uganda Shillings) for illegal detention of every seven $(7)$ days.

From the above findings, it is proved that the Complainant was detained from 14th June 2006 to 22nd June 2006 and hence spent eight days in police custody. Taking into consideration that two of these days are covered under the Constitutional 48 hour rule already explained above, the Complainant was in illegal detention for six days.

Therefore, with regard to all the circumstances of this case, I deem a figure of Ug. Shs 2,000,000 (Two million Uganda Shillings) adequate compensation to the Complainant. I so award.

# b) Violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment

In respect to this issue, the Complainant has also proved to the satisfaction of the Tribunal that on balance, his right of freedom from torture, cruel and inhuman treatment or punishment was violated by the Respondent's agents. He is therefore also entitled to recover from the Respondent compensation by way of damages.

According to CX1 the Complainant suffered injuries the have a long term effect on his health. I accordingly, I award Ug.shs 8,000,000 only (Eight Million Uganda Shillings) as compensation for the violation of the complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

#### **ORDER**

- The complaint is allowed. $1.$ - The Attorney General (the Respondent) is ordered to pay to the Complainant $2.$ Biryamondi Mohammed, a total sum of Shs.10,000,000/= (Shillings ten million only) as damages broken down as follows: - a) General damages for the violation of his right to personal liberty -Shs. 2,000,000/ $=$ . - b) General damages for the violation of his right of freedom from torture from or cruel, inhuman or degrading treatment or punishment - Shs. $8,000,000/=$ - 3. Interest at a rate of 10% per annum be paid on the total amount of Shs.10,000,000/= (Shillings Ten million), calculated from the date of this decision until payment in full. - 4. Each party to meet their own costs.

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

Quelle 1.................................. DATED AT KAMPALA ON THIS.. ...... DAY OF... **JOSPH A. A ETIMA** PRESIDING COMMISSIONER