Choronga J v Attorney General (Complaint No: FPT/83/10) [2018] UGHRC 27 (30 April 2018)

Full Case Text

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# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT HOIMA COMPLAINT NO: FPT/83/10**

## **CHORONGA JAFFER:::;:::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**-AND-**

### **ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::;;;; RESPONDENT**

## **DECISION {BEFORE COMMISSIONER STEVEN BASALIZA}**

The Complainant brought this complaint against the Respondent seeking compensation for alleged violation of his right to freedom from torture or cruel, inhuman and degrading treatment. He alleges that on 20th July 2010 at around 9:00a.m while at Kiryadongo Trading Centre, four armed men clad in civilian clothes including the Officer in Charge Rapid Response Unit (RRU) arrested and handcuffed him. That they ordered him to sit down and they started beating him. That three of those men beat him using batons all over his body while the O. C looked on. He further alleges that they hit his ankles and joints until he could not stand without support. He further alleges that he was forced onto a bicycle and taken to RRU Offices from where he was detained until 4:00p.m when the L. C 1 Chairperson of Kiryandongo Trading Centre, requested that he be taken to hospital. He was released and taken to Kiryandongo hospital where he was admitted for two months.

The Complainant contended that the actions ofthe RRU officers were unlawful and amounted to the violation of his right to protection from torture, cruel, inhuman and degrading treatment or punishment for which he holds the Respondents vicariously liable. The Complainant prayed for compensation.

The Respondent through its representative Mr. Bichachi Ojiambo denied liability.

#### **ISSUES**

The following issues were framed and agreed upon by the both parties.

(i) Whether the Complainant's right to protection from torture or cruel, inhuman and degrading treatment was violated.

- (ii) Whether the Respondent is liable for the agent's actions. - (iii) Whether the Complainant is entitled to any remedies.

Before I consider and determine the aforementioned issues, I wish to briefly give a background of the hearings leading to this decision. At the first hearing held on 26th September 2016, the complainant together with his witness Kyamangwa Fred were present. The Respondent Ojiambo was not in personal conduct of the matter and therefore CW1 and CW2 gave their testimonies. The matter was adjourned to the next hearing.

The matter came up for further hearing on 7th December 2016 for cross examination. However the Respondent was not present despite proof of service. The matter was adjourned to allow Respondent to cross examine, which prayer was granted.

At the next hearing held on 1st March 2017, the matter was still coming up for cross examination. The Respondent had been duly served but was not present and therefore the hearing proceeded exparte under rule 18(1) of the UHRC rules.

On 12th May 2017, There was further hearing and Respondent counsel cross examined the complainant and his witnesses. The matter was adjourned to the next hearing to enable the expert witness be summoned.

On 16th August 2017 the matter was heard and the expert witness gave evidence. The respondent was not represented though. It was the commission counsel's prayer that complainant's case be closed and adjourned for cross examination and in case respondent does not appear close the file for defense/written submission.

Further hearing of the matter was on 19th October 2017. The matter was coming up for cross examination ofthe expert witness. Respondent counsel Mr. Ojambo Bichachi being present cross examined him. Complainant's case was closed at that point and the Respondent was given one month to procure witness failure of which was given two months to write submissions. The matter was therefore adjourned.

The next hearing was held on 15th December 2017. The matter was coming for defense. The complainant and Attorney General represented by Nyangoma were also present. Respondent Counsel informed tribunal that since they had no witnesses she prayed to file written submission by end of January 2018. However there have been no such submissions up to now. It is against this background and in the interest of justice that this matter be decided. The fact that the Respondent has not produced any witnesses nor filed submissions does not in any way take away the Complainant's duty to prove his case on a balance of probabilities.

### **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 offacts which he orshe asserts must prove that thefacts exist''*

**And under S.102 ofthe Evidence Act (supra);**

*' 'The burden ofproof in a suit or proceeding lies on that person who would fail if no evidence at all were given on eitherside."*

Before I consider and determine the aforementioned issues, 1 wish to briefly give a background ofthe hearings leading to this decision.

#### **Issue 1**

**Whether the Complainant's right to freedom from torture, cruel, inhuman and degrading treatment was violated.**

The term 'torture' is defined by the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), 1984 as;

"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".

Various International human rights instruments to which Uganda is signatory seriously condemn torture. **(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).** Domestically, torture is outlawed under **Article 24 of the Constitution of the Republic of Uganda.** Additionally **the Prevention and Prohibition of Torture Act, 2012** was specifically passed to address this right.

This right to freedom from torture confers an obligation on government and its officials to refrain from any conduct that constitutes infliction of severe pain on individuals. This right is non derogable by virtue of **Article 44(a) of the Constitution.**

In order to establish torture, the ingredients laid down under **Article 1 of the CAT** that I have already cited above have to be proved. I will evaluate the evidence adduced with a view of determining whether the treatment that is alleged to have been meted out on to the complainant

by the Respondent's agents amounted to the level of severity that constitutes what would be categorized as torture according to the definition oftorture provided under **Article 1 of the CAT** and also in line with the related conceptualization of torture. Also in evaluating this evidence I will be looking to establish whether the four important ingredients and contours that are identifiable in the CAT definition are present. If not, then I shall determine whether the effects of the same actions amount to what is categorized as only cruel, inhuman and degrading treatment or punishment. In this respect therefore in order to establish torture, the four ingredients must be proved.

The definition of torture in **Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984.** Also see *(Fred Tumuramye Vs. Gerald Bwete And Others, Uhrc/264/1999)* as comprises of four important ingredients namely;

- 1. actions of torture caused severe pain and suffering to the victim both physical or mental, - 2. actions oftorture were intentionally inflicted on the victim, - 3. intention was to obtain information, or for punishment, or intimidation or coercion, as for any reason based on the discriminating ofthe victim, and - 4. Actions were committed by or at the instigation of a public official or another person acting in an official capacity.

The term 'torture' is defined by the **Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment** (CAT), 1984 as;

*"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 himfor an act he or a third person has committed or suspected ofhaving committed or intimidating or coercing him or a third person for any reason based on discretion ofany kind, when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence ofa public official or any other person acting in an official capacity".*

CW1 Choronga Jaffer testified that on 20th July 2010, at 09:00hours, while with friends in Kiryandongo Town Council, RRU officers and 3 other men dressed in civilian clothes accompanied by the O/C arrived holding a gun and wooden batons.

He added as follows:

"When they arrived they arrested me and ordered me to sit down. They never told me reason of arrest and started beating me. My colleagues ran away, I was with Bingi Asaba (RIP) run away. Bingi also ran away, I was beaten that I became weak under the Mango tree. I was beaten by the three. I was beaten on foot, knees, pelvic, hands while handcuffed. It took ten minutes. I was later put on a bicycle handcuffed and taken to their RRU office".

He further testified that he was put in the RRU cells around 09:00 hours and detained until around 16.00 hours when he was taken to the hospital by the OC and Chairman. He added that;

"I was admitted for two months at Kiryandongo hospital, were I was treated for the injuries. The left knee was badly beaten and the left hand thumb also dislocated. The left leg is still painful".

During cross examination by learned Respondent counsel Mr. Ojambo Bichachi, CW1 testified that Four (4) people holding batons beat him. He stated further that he did not know the reason as to why he was being beaten.

It was also CW2 Kyamanya Fred's evidence that on 20th July 2010, while at his workshop with Choronga, five people dressed in civilian clothes and one carrying a gun arrived and handcuffed CW1 on both hands while he was standing at the road side.

He added that when he refused to go, the non-armed men beat him with sticks until he fell down He stated that the joints and knees were all beaten. He added that the non-armed men the ones who beat him.

He also stated that despite the beating, the Complainant resisted to go and was badly beaten for about 20 minutes around 09:00 hrs further. They beat him for about 20 minutes. He added that he stood aside and watched as they pushed him away to RRU offices. He stated that after one week he met Choronga whose limbs were broken.

He further testified that the Complainant was admitted at hospital for two months but would walk with support of wooden sticks. He added that the Complainant was weak

**On cross examination, CW2** testified that on 20th July 2010 around 9:00am, he saw five (5) people one was in passion of a gun. That the Complainant was handcuffed and beaten. That the people who beat him were RRU officers as everyone knows them. He resisted arrest and was taken on a bicycle. He further stated that the Complainant spent around 8-9 months in the hospital.

**CW3 Balikya Augustus** testified that on 20th July 2010 at around 09:00hrs while seated with Choronga at the verandah of his bar in Kiryandongo town among others. That security officers dressed in army uniform and attached to Wembly beat the complainant's legs, feet and knees. He further stated that when the Complainant failed to walk, he was put on a bicycle and taken to their offices.

He added;

## *"They beat himfor about 15 minutes. They said nothing as they beat him "*

He testified that he later heard that he had been taken to hospital at Kiryandongo. He stated that the following morning at around 10:00 hours when he went to check on him, he found him with a swollen left leg and back and he was unable to talk. That he doesn't play football as he used to. That he has to do light work.

**On cross examination CW3** stated that the people who beat the Complainant were army men and they had guns. He further stated that they were from Wembly as they always arrested suspects in possession of illegal guns. He added that the Complainant was arrested but he strongly resisted the arrest and asked them where and why they were arresting him and that is when he was beaten. That he was admitted for about two weeks.

**CW4, Dr Kisembo Godfrey** the principal medical officer with Kiryandongo Hospital interpreted the certified medical document by the Senior Hospital Administrator from which the complainant was treated. He stated that the discharge form in the names of Chorongo Jafer indicated that the complainant was admitted at Kiryandongo hospital on 20th July 2010. And discharged on 29th July 2010. That he was discharged after one week since he had improved. That he was however given some treatment on discharge namely; Caps Amoxyl 500mg x 5/7 days, Metro Tabs 400mg, Flagyl for 5/7 days, Pain killer diclofenac. 100mg5/7, diazepam lOmg x5/7 days, and have a balanced diet.

He stated that the injury was moderate. He added that the injuries were classified as bodily harm. The medical document was tendered in and admitted as **Exhibit 1.**

In addition, the medical doctor stated that the x-ray was taken on 28th July 2010, at Kiryandongo hospital as that of, He added that it was knee x-ray that was done on both the frontal and lateral (sidewise). That it revealed that there were no fractures in the knee joint and that it was normal.

In relation to the first ingredient of whether the actions of torture caused severe pain and suffering to the victim both physical or mental, **Section 2(2) (a) of the Prevention And Prohibition of Torture Act, 2012,** provides that "Severe pain or suffering" means prolonged harm caused by or resulting from intentional infliction...of physical pain or suffering. **According a Journal by David Weissbrodt and Cheryl Heilman of University of Minnesota** **Law School on Defining Torture and Cruel, Inhuman, and Degrading Treatment, to** establish torture you have to consider the severity of the resulting harm. The Special Rapporteur 1986 report on Torture or cruel, inhuman and degrading treatment or punishment includes a listing of the types of actions that constitute torture. Some of the acts on the list are acts of commission, such as beating, burning, and suspension in water, among others. That you have to take into account other factors for instance the nature of the harm caused. The Complainant stated that he was beaten on foot, knees, pelvic, hands while handcuffed. **CW2 Kyamanya Fred testified that** Complainant and was badly beaten. It can be concluded that indeed the Complainant was subjected to torture and from the above adduced evidence.

In proof of the second and third ingredients of whether the actions of torture were intentionally inflicted on the victim and also whether the intention was to obtain information, or for punishment, or intimidation or coercion, as for any reason based on the discriminating of the victim. It was **CW3 Balikya Augustus's** testimony that the Complainant resisted arrest and the officers started beating him. **CW2 Kyamanya Fred** testified to the same effect. Therefore the beating was meant to punish as well as force the Complainant to heed to the arrest. **Section 2 of the Criminal Procedure Code Act Cap 116** provides that;

"In making an arrest the police officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. That if a person forcibly resists the endeavour to arrest him or her, or attempts to evade the arrest, the police officer or other person making the arrest may use all means necessary to effect the arrest".

"Nothing in this section shall be deemed to justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender".

The beatings meted out on to the Complainant with batons to the extent that the Complainant got admitted in hospital for 9 days is not reasonable force. Beside Article 44 provides that the right to freedom from torture or cruel, inhuman and degrading treatment is non derogable. The second and third ingredients is answered in the affirmative too.

The third ingredient of whether the actions were committed by or at the instigation of a public official or another person acting in an official capacity. It is clear from the testimonies on record that the officers who meted out the acts of torture on to the Complainant were attached to Rapid Response Unit (RRU) a former unit under Uganda Police Force(UPF). UPF is a government institution. Thereby making the RRU officers public officils. CW2 **Kyamanya Fred** testified that it was RRU officers who beat the Complainant. In further clarification, I had to look at additional evidence going by **Rule 21 (4) of the Uganda Human Rights Commission (Procedure) Rules 1998,** which empowers the Commission where deemed necessary, to use "its discretion" and "call such additional evidence as it considers necessary." **The** O. C, RRU-Kiryandongo who admits in his response marked **(R.12)** that the RRU officials indeed arrested the Complainant but however denied the torture allegations. Therefore the ingredient has also been proved.

Having evaluated the evidence on file as a whole, I find that The Complainant's and his witness's testimonies are all together consistent. However, CW2 Kyamanya Fred during cross examination stated that the Complainant spent around 8-9 months while admitted in hospital. CWI testified that he was admitted for two months and CW3 stated the period of admission as two weeks. The medical discharge form indicates that the Complainant was admitted at the hospital on 20th July 2010 and discharged on 29lh July 2010. This makes the total days of admission 9 (nine) days. In regard to this contradiction, I will refer to the case of **UGANDA VS ABDULLAH NASUR (1977) HCB** where it was held that in assessing evidence of a witness, reliance placed on its consistency is a relevant consideration. Where grave inconsistency may have no adverse effects on the testimony it may be admissible unless it points to deliberate untruthfulness.

Similarly in the case of **ABDULLAH DHALA VS SADRUNI CIVIL APPEAL NO 32 OF 1994, Oder JSC** held that where there are contradictions in the evidence of a witness, the deciding factor in law is whether they were such major contradictions as to indicate that the witness deliberately told lies to court.

I find that the contradictions in relation to the period the complainant actually spent in hospital while admitted are not grave in nature to warrant deliberate untruthfulness on the part of the Complainant and his witnesses. It is part of human nature to forget dates and time. The time once established will only guide the Tribunal in assessing quantum of damages but does not disqualify this complaint.

Moving forward the medical evidence also reveals that the complainant was assaulted. When resolving this issue one should have in mind that in order to establish the existence oftorture, the four ingredients must be present. From the evidence adduced by the Complainant, he was allegedly arrested by Wembly / RRU Officers and beaten without even disclosing the reason for doing so.

In **ARAKIT MARY MARGARET VS THE ATTORNEY GENERAL HCCS 0699 OF 2003,** it was stated that when a party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof; that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption.

The Tribunal having analyzed all the evidence on file which was mainly not controverted, I find on a balance of probabilities that the Respondent's agent violated the Complainant's right to protection from torture, cruel, inhuman and degrading treatment or punishment.

## **Issue 2**

**Whether the Respondent is liable for the violation of the Complainant's right**

According **to Article 119(4) (c) of the Constitution and section 10 of the Government Proceedings Act,** the role of the Attorney General is to represent Government in any civil proceedings to which Government is party and this is what is called vicarious liability. In relation to the law on vicarious liability it is clear that it is immaterial ifthe acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable as stated in **Muwonge Vs A. G (1967) EA 17.** It is thus irrelevant whether the acts done by the police officers were unjustified or unauthorized as long as they did such acts in the course of their employment. Similarly in the case of **JONES VS TOWER BOOTS CO. LTD 1997 ALLER 40 B** the court held that an act is within the course of employment ifit 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

It is clear from the testimonies on record that the officers who meted out the acts of torture on to the Complainant were attached to Rapid Response Unit (RRU) a former unit under Uganda Police Force(UPF). UPF is a government institution. Thereby making the RRU officers public officils. CWZ **Kyamanya Fred** testified that it was RRU officers who beat the Complainant. In further clarification, I had to look at additional evidence going by **Rule 21 (4) of the Uganda Human Rights Commission (Procedure) Rules 1998,** which empowers the Commission where deemed necessary, to use "its discretion" and "call such additional evidence as it considers necessary." The O. C, RRU- Kiryandongo who admits in his response marked (R.12) that the RRU officials indeed arrested the Complainant

#### **Issue 3**

#### **Whether the Complainant is entitled to any remedies**

Under **Article 50 of the Constitution of the Republic of Uganda, 1995:-**

"Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

Further under Article 53(2) ofthe Constitution:-

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order -

(a)

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

**Commissioner Joseph A. A Etima In CHANDIA PAUL AND ATTORNEY GENERAL UHRC/FP/037/2006** held that in assessing the amount of damages which a complainant should be awarded as a result ofthe violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment the following factors have to be taken into consideration; that freedom from torture, cruel, inhuman or degrading treatment or punishment is an absolute right, the nature and extent of the torture and/or cruelty, the nature and the extent of injuries resulting from the torturer or cruelty

**CW3 Balikya Augustus** testified that that the Complainant doesn't play football as he used to. That he has to do light work due to the beatings. On that note the Complainant is entitled to compensation for violation of his right.

## **ORDER:**

(i) The complaint allowed.

- (ii) The Respondent is ordered to pay the Complainant a sum of **Ug. Shs7, 000,000/= (Uganda Shillings Seven Million** as general damages for the violation of his right to protection from torture, cruel, inhuman and degrading treatment or punishment. - (iii) The total sum of **Ug. Shs 7,000,000= (Uganda Shillings Seven Million)** 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 Hoima this 2018.

Signed:

**PRESIDING COMMISSIONER**