Egwang Samuel David v Attorney General (Complaint UHRC 42 of 2009) [2018] UGHRC 6 (19 June 2018)

Full Case Text

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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA COMPLAINT NO: UHRC/42/2009**

EGWANG SAMUEL DAVID :::::::::::::::::::::::::::::::::::: -AND-

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: **INTERNATIONAL RESPONDENT**

(BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA)

## **DECISION**

The Complainant Egwang Samuel David a resident of Naguru Go – Down, Ministers Vllage, Nakawa Division, Kampala District alleges that on 2nd December 2008 he was arrested on allegations of theft and detained at Rapid Response Unit (RRU), Kreka in Kampala District until 19th December 2008 when he was taken to Court. The Complainant further alleges that while in detention at RRU he was subjected to severe beatings in order to make him confess to vandalizing his work place.

This matter came up for 1st time hearing on 13th February 2015 before former Commissioner Violet Akurut Adome. At the commencement of the Tribunal hearing, the following issues were framed for determination:-

$\mathbf{1}$

I. Whether the Complainant's right to personal liberty was violated?

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- II. Whether the Complainant's right to freedom from torture, inhuman or degrading treatment or punishment was violated? - III. Whether the Respondent is liable? - IV. Whether there is any remedy available to the Complainant?

litially there were two Complainants Egwang Samuel David and Kayondo Jimmy. Cn 20th April 2015 Kayondo Jimmy was struck off as a Complainant due to nonappearance.

The matter came up before me for further hearing on 9th August 2016 for cross examination of Egwang Samuel David the Respondent was not represented despite receipt of summons. On 28th February 2017, the matter came up for further hearing but the Respondent was not represented. At all the hearings, the matter proceeded ex-parte against the Respondent under Rule 18 (1) of the Uganda Human Rights Commission (Procedure) Rules 1998.

I will resolve the Issues in the order in which they were raised.

The Complainant has a legal duty to prove his claim against the Respondent on a balance of probabilities notwithstanding that the Respondent did not call witnesses or file a defence [See 100-102 of Evidence Act Cap 6; Rule 23 (1) of the UHRC (Procedure) Rules 1998; John Patrick Besingiza & Another vs Attorney General General and *Attorney Francis* UHRC/MBR/009/2007: Hakizimana UHRC/CTR/10/2009; Ariko Moses and Attorney General UHRC/402/2003].

As to the first issue, the Complainant's testimony is that he is a security guard working with Group 4 Security Solutions. At around 8:00 am on 2nd December 2008 he was picked from his home located in Naguru, Kampala District by Kiiza Frank and Ahanda Catherine who were in the company of three security personal dressed in civilian wear. He was told that a safe at his workplace had been tampered with

and jewelry stolen and he was the number one suspect. He was thereafter arrested and driven to RRU offices – Kireka where he was detained for two weeks. He was later taken to Court and thereafter remanded to Luzira Prison.

The Complainant tendered in the Certified Lock-Up Register from the Special Investigations Unit (RRU) Exhibit I which indicates that he was booked in on 2nd December 2008 on allegations of theft Vide Serial No 1772 SD Ref 14/2/11/2008 unil the 19th December 2008.

Any deprivation of personal liberty outside the prescribed instances results in a vidation of the right to personal liberty (Mbusa Wilson and Attorney General UHRC/F/151/2003; Elalu Medi Sebi and Attorney General UHRC/SRT/368/2003; Ahmbisibwe Dovito and Attorney General UHRC/MBA/38/2009). In the instance case as per Exhibit I the Complainant was in police custody from 2nd December 2008 until 19th December 2008 which is a period of 17 days when the 2 lawful days pemissible under Article 23 (4) of the Constitution of the Republic of Uganda 1995 are deducted 15 unlawful days of detention remain.

Therefore the Complainant's right to personal liberty as protected under Article 23 (4) of the I995 Constitution of the Republic of Uganda was infringed upon by the Respondent's agents for fifteen days.

## I therefore hold Issue I in the affirmative.

$\overline{C}$

In regard to Issue II, the Complainant's testimony is that at around 8: 00 am on 2nd December 2008 he was arrested from his home by Kiiza Franck and Ahanda Catherine who were in the company of three security personnel dressed in civilian wear. He was arrested after the safe at his work place had been vandalized. Upon arrest he was taken to RRU offices where he was detained. During his detention at RRU offices, the arresting officer subjected him to acts of torture in order to make him confess to vandalizing his work place. While in detention he was beaten by the aresting officer with a big stick, chains and batons on the knees, back and on the tes. That as a result of the beatings he could not walk properly and still cannot lend his knees properly and gets pains while bending. While in detention at RRU he vas given panadols as pain killers.

The complainant tendered in the certified copy of the medical examination report ated 2nd October 2012 from African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) marked ID 1. The Complainant was diagnosed with depression, post-traumatic stress syndrome and continues to suffer from the consequences of the alleged torture.

The prohibition on torture and other forms of ill-treatment is enshrined in Article 24 of the Constitution of the Republic of Uganda 1995, which states; "No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or pinishment". Article 24 must be read tighter with Article 44 (a) which states that no derogation from the provisions of Article 24 can be made.

Fom the evidence adduced before this Tribunal the complainant testified that upon his arrest on 2nd December 2008 he was detained at RRU offices. While in detention he was beaten by the arresting officer with a big stick, chains and batons on the knees, back and on the toes in order to make him confess to vandalizing the safe at his work place.

The evidence of the Complainant was not contested at all by the Respondent. In this regard, I find that the Complainant's evidence which was uncontested is on a balance of probabilities sufficient to prove that it was the officers of RRU Kireka who tortured him (see Section 133 Evidence Act Cap 6; Akot Catherine vs Attorney General HCCA 02/2017)

In the result, I hold Issue II in the affirmative.

I regards to Issue III, the law on vicarious liability is that an employer is generally liable for the act of the employer or agent- committed within the course of the

enployer's business. In order for there to be vicarious liability the servant must first be found liable. Then where the answer is positive the principal will be held to shoulder the servant's liability where appropriate [See Kasekya Kasaija Sylvan v Atorney General HCCS 1147 of 1998; Bagume John and Attorney General UHRC/JJA/10/2007; Okia John & Emuge Joseph and Attorney General UHRC/SRT/208/2006].

The Complainant's rights to personal liberty and freedom from torture were violated by Policemen attached to RRU – Kireka. No evidence was adduced that the police officers were acting on a folic of their own. Therefore the Respondent is vicariously liable for their actions.

I therefore hold Issue III in the affirmative.

I now turn to Issue IV. Having answered Issues I, II & III in the affirmative, the Complainant is entitled to a remedy the Tribunal deems fit and this may be payment of compensation or any other legal redress or remedy (See Article 53 (2) of the Constitution of the Republic of Uganda 1995; Article 8 of the Universal Declaration of Human Rights 1948).

As held in Issue I, the Complainant's was in unlawful detention for fifteen days before he was taken to Court. I deem a figure of UGX 4,500,000/= (Uganda Shillings four million five hundred thousand) adequate compensation for the violation of his right to personal liberty.

As held in Issue II, the Complainant was subjected to acts of physical torture by the Respondent's agents while in detention at RRU Offices. I deem a figure of Ug.shs. 5,000,000= (Uganda Shillings five million only) as general damages for the reedom from violation of his right to personal torture as protected under Article 24 of the $A$ Constitution of the Republic of Uganda 1995.

$\mathsf{S}$

## **RDERS**

/ccordingly, the Tribunal orders as follows:

- The Complaint is allowed. $(1)$ - The Respondent is ordered to pay the Complainant a sum of $(2)$ Ug.shs. 4,500,000= (Uganda Shillings four million five hundred shillings) as general damages for the violation of his right to personal liberty as protected under Article 23 (4) of the Constitution of the Republic of Uganda 1995. - (3) The Respondent is ordered to pay the Complainant a sum $\quad\text{ of }\quad$ Ug.shs. 5,000,000= (Uganda Shillings five million only) as general damages for the violation of his right to personal liberty as protected under Article 24 and 44 (a) of the Constitution of the Republic of Uganda 1995. - The above sum of Ug.shs 9,500,000/= (Uganda shillings nine million five $(4)$ hundred thousand only) shall attract interest at 10% per annum from the date of this decision till payment in full. - (5) Each party shall bear its own costs.

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

Dated at KAMPALA this .................................... ....... day of $1.1$ $1.2$ $2018$ .

MEDDIE B. MULUMBA. PRESIDING COMMISSIONER