Chris Upakmungu v Attorney General (Complaint UHRC 80 of 2007) [2016] UGHRC 1 (24 October 2016)


# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL

# HOLDEN AT JINJA

### COMPLAINT NO. JJA/80/2007

CHRIS UPAKMUNGU

## **AND**

#### ATTORNEY GENERAL RESPONDENT

#### **DECISION**

The Complainant, Chris Upakmungu, lodged this complaint before the Commission. He alleged that on 1<sup>st</sup> June, 2006 he was arrested by a police officer one Okiria No. 25384, attached to Mbale Police Station, on allegations of theft. That in the course of being arrested he was severely beaten as a result he was taken to Tororo Hospital for treatment. He further contended that at all material times the said Police officer was acting in the course of his employment as a servant of the government and thus the Respondent was vicariously liable for his actions.

The Complainant seeks compensation.

Issues.

- 1. Whether the Complainant's right to protection against torture or cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agents. - 2. Whether the Complainant has any remedy available in the circumstances.

Rule $23(1)$ of the Constitution (UHRC) (Procedure) Rules requires the Complainant to prove his case against the Respondent on a balance of probabilities.

Section 101 (1) of the Evidence Act, Cap. 6 Laws of Uganda provides.

"Whoever desires any court to give judgment as to any legal right or liability over the existence of facts which he or she asserts must prove that those facts exist."

And under Section 102 of the Evidence Act (Supra).

"The burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all were given on either side."

1. Whether the Complainant's right to protection against torture or cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agents.

The term "torture" is defined by the Prevention and Prohibition of Torture Act, 2012, as well as the Convention Against Torture and other Cruel Inhuman and Degrading Treatment or Punishment, 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 her or a third person information or confession punishing him for an act he or she or third person has committed or suspected of having committed or intimidating or coercing him or a third person 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 any other person acting in an official capacity"

Torture is outlawed by Article 24 and 44(a) of the Constitution of Uganda, and by several International Human rights instruments to which Uganda is signatory, and other domestic laws.

From the above laws, ingredients of the offence appear to be the following;

- 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 official or other person acting in an official capacity.

The Complainant, CW1, testified that on 1<sup>st</sup> June 2006, at about 10:00am he was arrested by Hajji Musa whom he later got to know as Okiria. That he was beaten on arrest and driven to Tororo Central Police Station where he was also beaten as he was told to produce the receipt for the phone he claimed to have bought. That he was then driven to Malaba to verify the receipts from where he had bought the phone. After verifying that the receipts were genuine he was taken back to

$3$ | P d g e

Tororo central Police Station and later released. That he went to Tororo main Hospital where he sought treatment.

Wanjala Robert, CW2, a special car hire driver testified that on 1<sup>st</sup> June 2006, he was hired by two gentlemen from Tororo who said they wanted to arrest someone. That these men were armed and identified themselves as police officers. That when they reached at the scene they called the Complainant on phone and tricked him. That when he came, the Policemen tried to arrest him but he was resisting arrest. That he was beaten and kicked and forced into the car. CW2 drove them to Malaba where they were to verify the receipts. After driving them back to Tororo Police station, he was paid and he left.

Kasajja Charles CW3, a Senior Medical Officer at Tororo Hospital testified and confirmed the findings he made when he examined the Complainant after the incident. He classified the injuries suffered by the Complainant as 'Bodily harm' which he further described as minor injuries. The medical treatment Notes Dated $1<sup>st</sup>$ June 2006 were admitted in evidence as *Exhibit C1*.

All the witnesses were cross examined, and their evidence was never shaken.

The Respondent called no witness for defence. On 4<sup>th</sup> December 2014, the matter was closed for written submissions to be filed by 30<sup>th</sup> January 2015. The orders of this Tribunal were not complied with to date. The backlog of cases is overwhelming and should be brought to an end. Filing of written submissions is not a legal requirement for a Tribunal to formulate a decision.

The Tribunal's order on $4^{th}$ December 2014 was to the effect that in absence of the submissions, the matter would be set down for decision. It is on this premise

that the Tribunal proceeded ex parte under Rule 18(1) of the UHRC Rules and the complaint was set down for a decision based on the available evidence.

In GEORGE ASIIMWE vs ATTORNEY GENERAL, KAMPALA HCCS No.48/97 where the Plaintiff closed his case and the Defendant offered no defence, MUGAMBA, J. held that the Plaintiff's evidence was not controverted and had to be accepted as the truth.

It is the considered view of this Tribunal that the acts committed against Chris Upakmungu constituted a violation of his right to protection against torture or cruel, inhuman and degrading treatment or punishment. This is on the basis of the Complainant's evidence supported by that of CW2 and CW3.

After analyzing all these statements, I find on a balance of probabilities, that Chris Upakmungu proved his case of alleged torture basing on its ingredients of torture being intentional to procure a confession or punishing him so as to confess. Therefore the Respondent is vicariously liable for the acts committed by the Police officers who violated the Complainant's right to protection from torture, cruel, inhuman and degrading treatment.

2. Whether the Complainant has any remedy available in the circumstances.

Having held that the Respondent's agent violated the Complainant's right to protection against torture or cruel, inhuman and degrading treatment or punishment, he is entitled to be compensated.

# Under Article 50 of the Constitution.

"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 $53(2)$ (c) of the Constitution.

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

- $\langle a \rangle$ - payment of compensation; or $\mathbf{b}$ ) - any other legal remedy or redress." $c)$

In consideration of all the above, I deem a sum of U. Shs1, $300,000=$ (one million and three hundred thousand shillings) adequate compensation to the Complainant. I so award.

## ORDER.

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the Complainant a sum of Ugshs, $1,300,000=$ (one million and three hundred thousand shillings only) - 3. Interest at 10% per annum to be paid on the mentioned amount calculated from the date of this decision until payment in full. - 4. Each party shall bear their own costs

Parties are informed of their right to appeal against this decision to the High Court of Uganda within 30 days from the date hereof.

HON. (RTD). JUSTICE GIDEON TINYINONDI

Presiding Commissioner

DATED AT JINJA THIS.... A. L. DAY OF... October... 2016