Emudu v Attorney General (Complaint No. UHRC/SRT/98/2008) [2017] UGHRC 17 (14 November 2017)

Full Case Text

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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT SOROTI COMPLAINT NO. UHRC/SRT/98/2008 EMUDU CHARLES I:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT AND ATTORNEY GENERAL RESPONDENT

## [BEFORE HON. COMMISSIONER MEDDIE B. MULUMBA] DECISION

The Complainant brought this complaint against the Respondent seeking compensation for the violation of his rights to freedom from torture or cruel, inhuman or degrading treatment or punishment and deprivation of ownership of property. He alleged that on 7th October 2008, he was arrested by the Officer-in-Charge Katine Police Post on allegations of stealing fuel belonging to CRBC Construction Company. That the O. C took him to CRBC Construction Company at Oculoi "A" Camp in Katine Sub County, Soroti District from where he was tied 'kandoya' style and severely beaten by Chinese and a one Okurut, a police officer. He further alleged that the police officer also took his Ugs. 40,000/=, and detained until 8/10/2008 when he was released. He holds the Respondent vicariously liable.

The Respondent, through his representative Ms. Topacho Juliet denied the Complainant's accusations.

## ISSUES

- I. Whether the Respondent's agents/servants violated the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment. - II. Whether the Complainant's right to property was violated by the Respondent's agents. - 111. Whether the Respondent [Attorney General] is liable for the violations - IV. Whether the Complainant is entitled to any remedy.

Before I resolve the above issues I wish to state that this matter was majorly heard by my colleague, the former Commissioner Violet Akurut Adome. I took over the matter when it was at defence level. The decision is therefore based on both records of proceedings.

From the record, this matter was heard in five hearings. During the first hearing, the Complainant testified but was not cross examined since the Respondent was absent. At the second hearing, the Complainant was present with three witnesses but the Respondent was absent; the Complainant's witnesses testified. At the third hearing, the Complainant was present with three witnesses and the Respondent was represented. The Complainant and his witnesses were cross examined and the Complainant's case closed. During the fourth and fifth hearings, the matter came up for defence but Counsel for the Respondent opted to file submissions in defence.

Throughout the hearing, the Complainant retained the duty to prove his case against the Respondent to the satisfaction of the tribunal. This is in accordance with;

SectionlOl [1] of the Evidence Act Cap 6 which provides that; "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that the facts exist"

And Sectionl02 of the Evidence Act [supra] which 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.'

I now turn to the issues.

ISSUE I: Whether the Respondent's agents/servants violated the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment.

The Constitution of the Republic of Uganda under Article 24 guarantees an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. It was also emphasized in ATTORNEY GENERAL VS SALVATORI ABUKI Constitutional Appeal No.1/1998 that the freedoms enshrined under Article 44 of the Constitution which include freedom from torture, cruel, inhuman and degrading treatment or punishment are non derogable.

Torture is further out lawed by several international human rights instruments to which Uganda is signatory. [See Articles 4 and 5 of the African Charter on Human and Peoples Rights [ACHPR], and Article 7 of the International Convenant on Civil and Political Rights [ICCPR]].

The actions committed against the Complainant would constitute "torture" if the same were proved as such.

The Macmillan School of Dictionary at page 779 defines "torture "as:

"extreme physical pain that someone is forced to suffer as a punishment or as a way of making them give information" It further defines "to torture" as to hurt someone deliberately in a very cruel way as a punishment or in order to make them give information.

The Convention against Torture [CAT] and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 defines "torture" to mean "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 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"

The words "cruel, inhuman or degrading treatment or punishment' are added to extend to the widest possible protection against abuse whether physical or mental.

The Complainant Emudu Charles [CW1] testified that on 7th October 2008, while at Apalamiyoi trading center at about 12.30 p.m he was arrested by a police officer and taken to a Chinese Camp.

He added as follows;

"At the camp, Okurut [the police officer] started slapping me on my hands four times before he untied me; Okurut untied me and left me with the policeman who was guarding the gate and went away with the Chinese. I stayed with this policeman up to about 6.00p.m. This policeman advised that I get back home since he could not keep me in custody for lack of evidence. I left and went back home. At about ll. OOp.m when we had entered bed, someone came knocking and ordering us to open the door, they kicked it and when we inquired who it was, the O/C Katine Police Post said he was the one. My wife opened the door and he entered the house while his colleagues - 2 policemen carrying guns remained outside. He tied my hands and ordered me to come outside though I had refused since I did not know who was calling me. He forced me out of my

house and I left with them. We moved up to Oculoi where we found the Chinese in a parked car at about 12.00p.m. We boarded the car back to the Chinese camp."

He further stated that at the camp, the O. C and the other two policemen left him in the hands of the Chinese hands; tied him kandoya style and put on a verandah. That at about 2.00a.m, four Chinese untied him, took me to the bathroom, tied his hands and legs and beat him with a machine belt, while kicking himon allegations of having stolen fuel from the grader. When he made an alarm, then they pushed the cloth in his mouth.

## He added as follows;

"At that time, there was no policeman, even the night guard police had not come. At about 3.00a.m the O. C arrived on a motorcycle, untied me and told me to sit on the motorcycle but I was so weak. I had been badly beaten using machine belts. Later I sat on the motorcycle and the O. C took me to Apalamiyoi Centre to get treatment. I was badly beaten and the Nurse refused to treat me; told the police officer to take me to the police post. He took me up to Police where I stayed until morning when a police vehicle took me to Soroti Hospital. I was admitted at the hospital for five days. It was only the police who got me at the Center who beat me; even the police OC who came at night did not beat me."

Upon cross examination by Counsel for the Respondent, the Complainant stated that he was arrested on allegations of theft of fuel by three armed police officers. That it was not true that he had stolen it. That he was arrested twice; first at the trading centre then the second time at his home. That during the first arrest, he was slapped by the officer while on the second arrest; it was the Chinese who beat him.

He further stated that he did not report to the Police since it was the police officers themselves who took him to the Chinese camp and kept on monitoring him. That since it was in the night, no one visited him at the camp.

Okello Raphael [CW2], an expert witness testified that he was a Clinical Officer in Soroti Regional Hospital holding a diploma in Clinical Medicine and Community Health from Fort Portal School of Clinical Officers of 1980.

He interpreted the medical report and stated as follows;

"When Emudu came with a medical examination form, he got me on duty and I examined him and found the following injuries on his body;

- I. Injuries on the lower back which was soft tissue injury. - 2. Bruises on both elbow joints - 3. Bruises on both ankle joints - 4. Soft tissue injuries on both loins areas [near the pelvic area],

I classified these injuries as body harm because injuries of 2 and 3 were infected as a result of tying the patient with a rope 3 piece; while injuries I and 4 were out of a blunt object."

He also stated that he managed the Complainant's condition with pain killers and ointment for massaging the parts which were swollen. That it was not life threatening although due to the 3 piece, the nerves would get damaged and the victim gets paralysis of the joints. That the ligaments can get torn and this can lead to disability. Further, that the injuries were not very serious. The medical report was tendered in as exhibit to form part of the Complainant's evidence and marked CXI

Upon cross examination, Okello Raphael stated that he examined the Complainant personally; his injuries were not life threatening. That the Complainant told him that the police had tied him 3 pieces which led to the injuries. Further, he stated that tying of 3 pieces could lead to disabilities and ligament injuries but a person can fully recover.

Further, Alobo Stella [CW3] testified that on a Tuesday, around 11.00 a.m in 2008 the Complainant was taking her to hospital when he was arrested by two Chinese and three police officers. That they caught him by his trouser and threw him to a Chinese pick up and one Chinese man stepped on him.

That they drove him to the Sub County and when she tried to follow, she was stopped by the Officer In Charge. That the following day, her mother went to her and informed her that the Complainant was badly off and indeed she went to the sub county and husband had been badly beaten beyond recognition.

That when she asked the O. C to allow her take her husband to hospital, he refused that he should die, but later, he accepted and she brought him to Soroti hospital where he was admitted for one day and treated, then later he was discharged. She also stated that she did not see her husband being beaten but he was only being slapped during arrest.

During cross examination by Counsel for Respondent, she stated that the Complainant was arrested by police officers at the Centre, during day. She was consistent and stated that she was around when the husband was arrested and she went to the police the following day and found the Complainant with a swollen body.

Obwal Joseph [CW4] stated that on a date he had forgotten, he received information from the people at the main road that Emudu had been arrested the day before and had been taken to the Chinese camp. That he went to the camp and found when the Complainant had been tortured and he was very weak. That he asked for the in-charge but was informed that he was not around which prompted him to go to UHRC and report the matter. He also testified that when he called at the police post, he was informed that the Complainant had been taken to Soroti hospital. That he went to the Hospital and found the Complainant admitted in a critical condition and was admitted there.

Upon cross examination by Respondent's Counsel, Obwal stated that the he was not present when the complainant was being arrested nor beaten but he saw him at the police post when in bad shape.

As noted before, the Respondent's Counsel never brought defence witnesses but opted to file submissions in defence of the matter.

From her submissions, Counsel stated that the tribunal had rejected her prayer to bring witnesses in defence of the matter. I find that the Respondent failed in her endeavors to present witnesses. This matter was adjourned on three occasions to enable the Respondent bring witnesses but she failed to secure them. The record of proceedings is clear to that effect. Therefore, there is no way the tribunal would delay dispensing justice after the Respondent's failure to bring witnesses at three hearings.

Counsel for the Respondent also submitted that the Complainant was not beaten by the police officers but instead by the Chinese. That there is no way the slaps inflicted on the Complainant by the police officer could cause severe pain and suffering to him.

She further stated that it was obvious the Chinese were not agents of Government and so the Respondent could not be held liable in that case. That even if the police officers were to be held liable, they would be charged with the criminal offence of assault and not torture.

Having heard from both sides, I find from the evidence on record that police officers together with the Chinese arrested the Complainant. During arrest, the police officers slapped the Complainant and together with the Chinese took him to the Chinese camp from where he was tied 'kandoya' style by the police officers. The Police officers left the Complainant in the hands of the Chinese who allegedly beat him. Further, the Police

officers went to the camp in the morning, picked up the Complainant, took him to the police post and later to hospital.

From the above, what lingers in my mind is why did the police officers arrest the Complainant and illegally detain him in a Chinese camp? How the people who are supposed to protect instead aid the torture of the Complainant. This in itself was a failure on the part of the Respondent's agents. There was acquiescence on the part of the police in carrying out their duty of keeping law and order.

The omission by the Respondent's agents fall within the ambit of the definition of torture since the pain was inflicted at the instigation, consent and acquiescence of the police officers.

WHEREFORE I find on the balance of probabilities that the Respondent's agents violated the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment. The police officers effected an arrest of the Complainant and handed him to the Chinese who beat him of allegations of theft of fuel and occasioned severe pain.

## ISSUE II: Whether the Complainant's right to property was violated

The right to property is protected under Article 26 of the Constitution of the Republic of Uganda and Article 17 of the Universal Declaration of Human Rights 1949. Article 17 [1] of the UDHR provides that everyone has a right to own property alone as well as in association with others. It further provides that no one shall be arbitrarily deprived of his property. Article 26 of the Constitution of the Republic of Uganda is in pari-materia with Article 17 of the UDHR except that the Constitution goes ahead to provide for exceptions and the procedures under which property can be lawfully taken away.

Specifically Article 26[2) is to the effect that no person shall be compulsorily deprived of property except if it is necessary for public use or in the interest of defence, public

safety or public health, to mention but a few; and the compulsory taking of possession or acquisition is made under a law which provides for prompt payment of fair and adequate compensation prior to taking of possession or acquisition of property, and a right of access to a court of law by any person who has interest or a right over property. If property is taken away in disregard of the procedures provided for by this Article, property is said to be lawfully acquired or possessed thereby violating the right to property by the owner.

## In the case of James Rwanyarare vs Patrick Muhumuza 81 ors [2002] UHRC at 2002] UHRC at 200, it was held that;

- 1. To prove that his right to property was violated, Dr. Rwanyarare had to prove ownership and or possession of the property at the material time. He also had to prove that he was un lawfully deprived of them. - 2. S.100 of the evidence Act cap 6 provides that whoever desires any court to give judgment to any legal right or liability dependent on the existence of facts that he asserts, must prove that those facts exist. Dr. Rwanyarare ought to have tendered receipts in proof of the money exchanged or brought Milton Obote foundation officials who bought the forex to prove that he had the money in issue. Dr. Rwanyarare had to prove ownership and possession of the property but he failed to discharge this burden of proof. The Tribunal was therefore not convinced that Dr. Rwanyarare had the property in question at Entebbe airport.

It is the Complainant's testimony that during his arrest, the police officer Okurut took his money amounting to 40,000/=. That his phone fell from his pocket when he was told to climb the vehicle.

During Cross examination by Counsel for the Respondent, the Complainant stated that there is no evidence that his money was taken since they were only two people around i.e. him and the police officer.

CW3 8C CW4 did not make any mention of the money and phone the Complainant alleges to have lost during arrest. Even the Complainant's own wife who was present during arrest did not to see the husband's property being taken.

In her submissions, Counsel for the Respondent stated that during hearing, the Complainant testified that his money and phone fell from his pocket while he was climbing the vehicle yet in his statement to the Commission; he stated that his phone had been confiscated by Chinese. That the Complainant during hearing stated that the police officer took his money amounting to 40,000/= yet he had earlier stated that the money was 45,000/=. Counsel relied on Sir Udo Udoma C. J in Kabenge Mpalanyi, Practice Manual Series by Kiapi at page 13, which states;

"It was a well-known principal of law and practice that a man who swore the contrary of what he stated on a previous occasion was not worthy of belief".

I concur with the submission of Counsel for the Respondent. The Complainant was not consistent in his testimony on the property lost and how it was lost. 1 also find that the Complainant has failed to prove ownership or possession of the property he alleges was taken by the Respondent's agents.

The Complainant has therefore failed to prove ownership or possession of UG Shs 40,000/= and phone and thus there is no evidence to show that the officers took it. Hence issue two is resolved in the negative.

ISSUE III: Whether the Respondent [Attorney General] is liable for the violations against the Complainant's right.

As resolved in the above issue 1, there was a violation of the Complainant's right freedom from torture or cruel, inhuman or degrading treatment or punishment contrary to Articles 24 and 44 of the 1995 constitution of Uganda.

According to Article 119(4] [c] of the Constitution and section 10 of the Government proceedings Act, the Attorney General is mandated to represent Government in any civil proceedings to which Government is party.

The vicarious liability of Government for acts of police officers is derived from the functions of the Government of Uganda which include being responsible for defence, security, maintenance of law and order, as recognized under Article 189 and item 2 in the 6th schedule to the constitution of Uganda 1995.

In relation to the law on vicarious liability it is clear that, it is immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable [see Muwonge Vs Attorney General [1967] EA17].

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 if it is either a wrongful act authorized by the employer, or a wrongful and unauthorized mode of doing some act authorized by the employer.

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.

The police officers arrested Emudu Charles [Complainant], slapped him, tied him kandoya style and took him to the Chinese camp and was severely beaten by the Chinese. These police officers both individually and severally worked on behalf of the state which is their master hence it was proper for Attorney General to represent Government.

Therefore the Attorney General in this matter is vicariously liable for the violation of the Complainant's right of to freedom from torture or cruel, inhuman or degrading treatment or punishment by police officers.

## ISSUE IV : Whether the complainant is entitled to compensation:

Article 53(2] of the Constitution provides that:

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

fa]

[b] payment of compensation; or

[c] any other legal remedy or redress."

Having held that the Respondent's servants/agents violated the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment, it follows that he is entitled to compensation by the Respondent.

This is based on the principle in the case of Christopher Ssajabi Nsereko Vs Attorney General UHRC No.112/99 in which Commissioner F. Mariam Wangadya held that indeed human rights and freedoms would serve no purpose if their violations did not attract redress to the victims.

In assessing the amount of compensation to be awarded, I will consider the right to protection from torture or cruel, inhuman or degrading treatment or punishment is an absolute right under Article 44(a] of the Constitution of the Republic of Uganda, the injuries sustained and the severity of the pain and suffering experienced as a result of torture. I take note that the Complainant was tied kandoya style by the police officers and beaten by the Chinese in the joints using a machine at the aqusicence of the police officers. 1 will also put into consideration the testimony of CW2, an expert witness who

stated that tying of 3 pieces could lead to disabilities and ligament injuries but he could fully recover.

Furthermore, I will take 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". Accordingly 1 find a sum of UGX 5,000,000/ as adequate compensation in the circumstances.

## ORDER

- 1. The complaint is allowed in part. - 2. The Attorney General [Respondent] pays the Complainant Emudu Charles a sum of U. Shs 5,000,000/ [Five million Uganda Shillings] as compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. The said amount of U. Shs 5,000,000/= only [Five million Uganda Shillings] will carry interest at 10% per annum from the date of this decision until payment in full - 4. Each party shall bear their own costs.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date of this decision.

DATED AT SOROTI on this ....... day of f^^.:....2017

HON. NEDDIE B. NULUNBA PRESIDING COMMISSIONER