Esenu v Attorney General (Complaint No: UHRC/ SRT/86/2008) [2019] UGHRC 19 (7 October 2019)


**THE REPUBLIC OF UGANDA**

**THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

## **HOLDEN AT SOROTI**

## **COMPLAINT NO: UHRC/ SRT/86/2008**

**COMPLAINANT ESEN-YO JAMES ISAAC**

**AND**

**ATTORNEY GENERAL RESPONDENT**

### **BEFORE: HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA**

#### **DECISION**

**c^5\*\*xA.** The Complainant(C) E**s**e**n**ye James Isaac, alleged that on 28th June 2008, he was arrested from Akoke Oburiekori village on the allegation ofmurder by Police officers attached to Ocapa Police Post and taken to Soroti Central Police Station. That while he was at the Police Station, he was detained in a cell and a Police officer called Patel instructed suspects to beat him using a wire lock so that he could reveal where the number plates of the motorcycle belonging to the person he had killed was. That as a result of the beating he sustained injuries on the back, his urine and stool contained blood. That he was released on 18th July 2008 without being taken to court.

The C therefore prayed to the Tribunal to order for compensation to be paid to him by the Respondent (R) for the alleged violation of his right to personal liberty and the right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

R through their representative counsel (RC), Masaba Peter, Topacho Juliet, Lumbe Eric denied liability and opted for defending themselves in this matter.

#### **Issues:**

The issues to be determined by the Tribunal are:

- 1. Whether C's right offreedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether C's right of personal liberty was violated by State agents. - 3. Whether R (Attorney General) is liable for the violation. - 4. Whether C was entitled to any remedy.

R's failure to put up a substantive defense case did not take away C's duty to prove his allegations to the satisfaction of the Tribunal. C still had a burden of proving that R violated his rights under Section 101(1) ofthe Evidence Act Cap 6:

> 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 those facts exist.

And, Section 102 also provides that:

The burden of proof in any suit of proceeding lies on that person who would fail if no evidence at all were given on either side.

<sup>I</sup> have to clearly state that the burden ofproof in this complaint is on a balance of probabilities.

Now, let me turn to the aforementioned four issues.

# **Issue 1: Whether C's right offreedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents**

**C** testified that on 28th June 2008, between 3:00p.m. and 4:00p.m., he was arrested from Akoke Oburiekori <sup>1</sup> village by the Local Council <sup>1</sup> defense Secretary and Police officers attached to Ocapa Police Post and taken to Akoke Police Post where other Police officers were. That he was thereafter taken back to his home in Akoke Oburiekori <sup>1</sup> Village and the Police officers entered his house with him and started searching for a number plate of a motorcycle and a gun. That when they failed to get what they wanted, he was brought back to Ocapa Police Post and told to remove his shoes and sit down. That he was later brought to Soroti Central Police Station and told to remove his shirt. That when he removed the shirt, a Police officer called Patel slapped him on the cheek and told him to sit down and then told to show the Police where the body ofthe person he had killed was. That he told them that he did not know about what they were talking about, so he was taken to the cells and Patel instructed suspects to beat him. That at that time, it was getting dark and Patel brought a wire lock and gave it to the other suspects in the cell and they beat him using the wire lock, kicked and boxed him all over the body. That the Police officer told the suspects to beat him until he disclosed were the number plate and the gun were. That one inmate called Isrobok Esabu beat him with a wire lock until he collapsed. That an inmate called Saidi told him that he collapsed three times.

That when his relatives came to visit him in detention, they were not allowed to see him. That he was detained from 28th June until 18lh July 2008. That while he was in detention, he gave Saidi's wife a small note to take to the Uganda Human Rights Commission and one day during the morning parade, the District Police Commander saw his condition and instructed two Police officers to take him to Soroti Regional Referral Hospital for treatment. That as a result of the beating, he sustained wounds all over his ears, back, waist and pus was coming out of his ears. That he was taken to hospital on 18th July 2008 and thereafter released on Police bond.

The certified copy of the lock up register from Soroti Central Police Station was admitted with RC's consent as C's first exhibit as C XI.

During cross examination, C claimed that he was a peasant farmer and he was 28 years at the time of his arrest. That he was arrested on the allegation of murder and that he had never been arrested before. That he was arrested on 28th June 2008 by the Local Council <sup>1</sup> defense secretary and Police officers and he was never taken to court. That there were other suspects who were tortured on Police instructions during his detention. He stressed that what he was saying was true and that the Police's role was to protect suspects and not to torture them. That he had a witness called Omongot but he had no evidence to show that the Police officers instructed suspects to beat him. That he also had photos showing the wounds he sustained on his file. That the documents that show his detention were left at the Police Post. That he was told by a suspect called Saidi that he collapsed three times.

**CWI, Okwaju Juvcntine** testified that on 28th June 2008, he went out to look for food and when he came back, he found Esenu James missing. That he was 36 years at that time. That he went to the Gombolola Internal Security Officer (GISO) of Kateta and reported the matter. That he went to Soroti Central Police Station after one week where he found him and talked to him and went back home. That when he saw him, his body was swollen. That he came back and asked the Police officer to see his son and he was told that he was facing murder charges. That he was also allowed to talk to him and he told him that he was beaten but not allowed to get treatment. That he had wounds on his back, body and was swollen and his body was smelling. That he was released that very day.

During cross-examination, CWI claimed that at the time of C's arrest, he was 36 years old and a peasant. That C was detained for <sup>1</sup> *Vz* months. That he visited him in detention one week after his arrest. That C did not tell him that it was Esabu Irobok who tortured him but he (CWI) did not know him, nor did C tell him who he was. That when C went to Soroti National Referral Hospital, he was treated as an outpatient.

**CW2, Odicha John** testified that in June 2008 on a date he could not recall, his brother Esenu was arrested. That on the following day while he was in Atira Center, four armed Police Officers wearing police uniform approached him and he asked them what the problem was. That he was able to identify a one Erogu a Police officer attached to Atiira Police Post. That after sometime, the Officer in Charge Atira Police Post and the Vice Chairperson of Okweny Village produced a paper and said that they were looking for Odicha John who had a missing motorcycle number plate. That the old man he was staying with called Odicah John also told them that they were two people with the same names and none of them had a motorcycle. That the Police officers went ahead to search the house and they did not find the number plate. That by that time, Esenu had been taken to Soroti Central Police Station.

He added that after the house had been searched, the officer in charge told the old Odicha John to go and make a statement. That he went with the old man and his wife Atim Evelyn up to Atira Police Post where a Police Officer made a call asking whether they had got the Odicha John they were looking for. That they were all taken to Soroti Central Police Station and when they reached, they were asked who the brother to Esenu was. That after CW2 had identified himself and Odicha John released he (CW2) was pushed into the cell and a certain Police officer signaled to the suspects to beat him until he revealed where the number plate was. That while in the cell, he saw C lying unconscious next to the bucket of urine, blood and bruises on his back. That he was also beaten with a wire lock while they were demanding that he reveals where the number plate was.

That the suspects he found in cells, one was called Obony and Ideket who were from the same town. That he did not see C being beaten but only found him lying down in the cell with torture marks. That C told him that he was beaten by Esabu Robok and Egeng who were also suspects in the same cell. That he believed that he was beaten while in the cell because he said that he was beaten with a wire lock which was also used on him (CW2). That C was released one month before he was released. That their aunt took them for medical treatment while they were in detention but they accessed more treatment after their release. That he saw C when he went to visit him in detention and his condition had improved.

During cross-examination, CW2 clarified that he did not see anybody beat C. That he could not remember the exact number of days but they could have been about two months. That it was Patel (the Police officer) who signaled the suspects to beat him. That he had not told the Uganda Human Rights Commission lies because he was sure about what he had said. That he was of sound mind. That it was true that he was beaten because he did not give Patel money he had asked for but even though he had, he would still have been beaten. That C was his elder brother and he got medical treatment from Soroti Regional Referral Hospital. That he (CW2) was arrested in June and released in August. That he could not remember when he recorded the statement but he it was recorded after his release.

**CW3, Dr. Ouna Martin Acunu** testified that he was a practicing medical doctor working at Soroti Regional Referral Hospital for 10 years.

He identified the medical form in respect of C dated 10 November 2011 signed by Dr. Sangadi Elijah. That C went to Hospital complaining of having been in detention between June and July 2008 and sustained injuries to the back and buttocks. That he also reported loss of consciousness which he regained on the following day while still under detention. That a month later he was given two injections. That upon examination, C had hipped injections (scars grew beyond the level ofthe skin) located between the scapular region and on the left buttock. That the conclusion was that the scars were sustained due to lacerations sustained using a rough object, which could have been a stone, stick hence subjecting the patient to bodily harm. That those scars could create restriction of the skin, itching ofthe scars and form wounds when scratched on the back. That they would also restrict the patient from using the upper limits (hands).

During cross-examination, CW1 stressed that the medical from had been signed by Dr. Sangadi Elijah on 10th November 2011 but he had not indicated his name. That the body parts affected on the form included the scapular regions and left buttocks. That ifthe wire had no rubber around it would still be a rough object.

He clarified that there was no report of blood in urine and stool. That lacerations cause minor injuries classified as "harm." That it was not indicated on the medical form whether the patient got any treatment and there was no inference for further medication

The medical form from Soroti Regional Referral Hospital was admitted with RC's consent as C's second exhibit CX2.

R's side never called any defense witnesses to rebut evidence adduced by C, despite the several opportunities accorded to them. Also, for the two months given to R's side to file submissions, there was no effort made for the same, yet C clearly stated that he was tortured by suspects while in Police custody at Soroti Central Police Station. In the case of **EDEKU MARTIN VS ATTORNEY GENERAL (1995) XI KALR 24,** court held that:

> Contentious issues are deemed admitted where a defendant does not call evidence in rebuttal.

I note that there was no challenge to C's evidence during cross examination in respect of the issue under consideration, and since there were no defense witnesses presented before the tribunal to rebut the evidence adduced by C , it is implied that R's side waived their right to defend the complaint lodged against them by C.

I shall now consider the legal framework that provides for the right I am currently considering.

International, Regional and National human rights frameworks guarantee the aforementioned right. Article 5 of the Universal Declaration of Human Rights of 1948, Article 7 of the International Convention on Civil and Political Rights of 1996 and Article 5 of the African Charter on Human and Peoples' Rights of 1986 prohibit the violation ofthe individual's right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

Article 24 ofthe Constitution of the Republic of Uganda 1995 also prohibits the violation ofthe above right and emphasizes its non derogability under Article 44(a). The foregoing Article implies that under no circumstances whatsoever can a person be subject to torture or to cruel, inhuman or degrading treatment or punishment.

Incidentally, none of the above mentioned legal provisions clearly what torture means, but a legal definition of the same has been provided under the United Nations Convention Against Torture and Other Cruel, Inhuman or degrading Treatment or Punishment to mean:

> 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 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. It does not include pain or suffering arising from, inherent in or incidental to lawful sanctions.

I shall now determine the issue under my consideration under the above mentioned legal framework but also in line with the following key elements oftorture I have identified.

- That the assault on C caused him severe suffering or pain, whether physical or mental. - That the assault was intentionally inflicted on C.

- The assault was inflicted for the purpose such as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind; - The act was inflicted by or with the instigation or with the consent or with the acquiescence of a public official or any other person acting in official capacity. - That the include pain or suffering did not arise from, inherent in or incidental to lawful sanctions imposed on C.

I have accordingly applied the aforementioned elements in my assessment of the evidence adduced by C before the honorable Tribunal to determine whether or not he was subjected to torture or cruel, inhuman or degrading treatment or punishment.

C clearly stated that as a result of the beatings he suffered under the hands ofthe Police while in Police custody at Soroti Central Police Station, he sustained injuries on the back and left buttock which were corroborated by CW1 and CW2 who visited and saw him while he was in detention. C's evidence was also scientifically corroborated by the medical report from Soroti Regional Referral Hospital which revealed that the injuries had been inflicted using a rough object and were classified as harm.

Accordingly, C and CW2 clearly said that the beating was intentionally carried out following the instructions of a Police officer called Patel so as to force him reveal the whereabouts of the number plates ofthe motorcycle belonging to the person he had allegedly killed. And apart from the severe pain that C experienced, the medical evidence showed that the injuries/scars that he sustained were likely to develop into other skin related abnormalities. According to C's evidence, the instructions were given by the Police who were at the time carrying out investigations but this did not accord them the right to assault C. The treatment that C experienced can thus only be described as torture and cruel treatment or punishment. That second ambit of inhuman or degrading treatment is evident from the description of the medical evidence adduced by CW3, which revealed that as a result of torture C sustained scars on his body which grew beyond the level ofthe skin on the back. The scars would develop into wounds when scratched and also restrict the patient from using the upper limits (hands).

I am therefore convinced that there is a high probability that the Police officers who arrested and caused C's assault while in Police custody, violated his right of freedom from torture or cruel, inhuman or degrading treatment or punishment. And given that there was no explanation provided by R's side, I shall consider the case of **ASKOY VS TURKEY (21987/93) [1996] ECHR 68 (18 DECEMBER 1996)** where the court stated that:

> Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises

From the foregoing observations, C's claim has been proved on a balance of probabilities that his right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State Agents. I therefore conclude this issue in the affirmative.

C's claim in this respect therefore succeeds.

## **Issue 2: Whether C's right to personal liberty was violated by State agents.**

**C** testified that he was arrested on 28th June 2008, between 3:00p.m. and 4:00p.m., by the Local Council <sup>1</sup> defense Secretary and Police officers attached to Ocapa Police Post and taken to Akoke Police Post on the allegation of murder. That he was thereafter taken back to his home so that they could conduct a search and then taken back to Ocapa Police Post. That he was later taken to Soroti Central Police Station and detained until 18lh July 2008 when he was released on Police bond. That he was never taken to court.

The certified copy of the lock up register from Soroti Central Police Station was admitted with RC's consent as C's first exhibit as C XI.) confirms C's detention at the facility and it clearly shows that he was booked in on 28th June 2008 and booked out on 18th July 2008 which gives a total of 52 days of his detention.

The right to personal liberty is also guaranteed under International, Regional human rights instruments to which Uganda has signed and ratified. For instance Article 9(1) of the International Covenant on Civil and Political Rights of 1966, provides that:

Everyone has a right to personal liberty and security ofthe person. No one shall be subjected to arbitrary arrest and detention.

In addition, Clause 3 ofthe aforementioned Article provides that:

Anyone arrested or detained on a criminal charge shall be promptly brought before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.

Furthermore, Article 6 of the African Charter on Human and Peoples' Rights of 1986 re-echoes Article 9(1) ofthe ICCPR but further provides that:

> No one may be deprived of his freedom except for reasons and conditions previously laid down by the law. In particular, no one may be arbitrarily arrested or detained.

Article 23 ofthe Constitution ofthe Republic ofUganda 1995, also provides that:

No person shall be deprived of personal liberty except in, execution of a sentence or order of court, in fulfillment of any obligation imposed on that person by law, for the purpose of bringing that person before a court, for the purpose of preventing the spread of an infectious disease, for the purpose of education or welfare of a person who has not attained the age of eighteen, to prevent unlawful entry into Uganda or as may be authorized by law.

Article 23(4) (b) specifically provides that:

A person arrested or detained 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 released, be brought to court as soon as possible but in any case not later than fortyeight hours from the time of his or her arrest.

The aforementioned provision is also enshrined under Section 25(1) ofthe Police Act Cap 303.

In **STEPHEN ERAU AND ORYEM D/ASP AND 3 OTHERS, UHRC NO. 397/99; UHHR [2002)35,** it was held that:

> Any arrest and detention contrary to the circumstance outlined under Article 23(1) ofthe Constitution is a violation of the right to personal liberty.

C's documentary evidence, was corroborated by that adduced by CW1 and CW2. In his evidence, CW1, reported to the Police that C was missing, visited him at Soroti Central Police Station one week after his arrest and that C was detained for <sup>1</sup> 'A months and he knew that he received treatment from Soroti Regional Referral Flospital on 18th July 2009 when he was released on Police bond. CW2 said that C was released after about two months, which is the exact period that C and his first exhibit indicated.

My assessment of C's evidence therefore regarding the number he was detained at Soroti Central Police Station was a total of 52 days without producing him before court. In the case of **SAFATI KIWANUKA VS KAMULI DISTRICT ADMINISTRATION, (1994-1995), HCB 74,** Justice Kato stated that:

Once the plaintiff has proved the fact of his arrest, it is up to the

defendant to prove that the arrest was lawful.

I already mentioned at the beginning of this decision that C bore the burden of proof of his detention; and in circumstances where a complainant proves that his right was indeed violated, then it was incumbent upon the Respondent to prove the contrary.

I have already stressed that throughout all the proceedings ofthis complaint that R's side did not present any defense evidence to rebut C's evidence. In addition, no explanation was given at any one time as to why C was detained for a period exceeding forty eight hours in contravention with the provisions of the Constitution of the Republic of Uganda 1995 and the Uganda Police Act, Cap 303. C's detention was also not subsequent to the exceptions provided under Article 23(1) (a -g). It is therefore imperative upon this Tribunal to state that State Agents at Soroti Central Police Station violated C's right to personal liberty, having failed to justify the illegal detention to the satisfaction ofthe Tribunal.

Accordingly, C's claim in this respect also succeeds.

### **Issue3: Whether R (Attorney General) is liable for the violation.**

The aforementioned State Agents who violated C's two rights were attached to Soroti Central Police Station thus, employed by the government to maintain law and order in accordance with the provisions ofthe Constitution ofthe Republic of Uganda and the Police Act Cap 303. Article 119(4) (c) of the Constitution places a duty on the Attorney General of Uganda to represent the government in any civil proceedings to which the Government is a party. From the beginning of hearing of this complaint, the Attorney General appeared and much as his side did not present any defense, the Tribunal found that his employees violated C's rights. By virtue of the foregoing observation, the Attorney General is vicariously liable for the omissions of his servants.

### **Issue 4: Whether C is entitled to any remedy**

Article 52(3) b and c ofthe Constitution provides that the Commission may ifsatisfied that there has been an infringement of a human right order for compensation to be paid to the victim or order any other legal remedy or redress. At the beginning of this decision, I indicated that when C was prosecuting his complaint, he prayed that the Tribunal orders for compensation to be paid to him by R. The issues raised before the tribunal were duly resolved and it was found that indeed, R violated C's two aforementioned rights. It is on that premise that I state that C deserves compensation to be paid to him.

Now, as I determine the quantum of damages to be paid to C, <sup>I</sup> am considering the principle laid down in the case of **MATIYA BYABALEMA AND OTHERS VS UGANDA TRANSPORT COMPANY SCCA NO 10 OF 1993,** where it was stated that:

Courts 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.

I shall now consider the compensation to be paid to C.

# **(a) Violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment.**

The quantum ofdamages in this respect shall be determined by taking into account the following elements.

- a) That the right involved is non derogable. - b) That C suffered serious injuries, especially on the back. - c) Relevant case precedents. - d) The value ofmoney to be paid and what it can purchase at present.

In the case of **OMOLA MOSES AND ATTORNEY GENERAL UHRC/SRT/206/2005; [UHRR 2012-2014] 1, 39,** the Complainant was beaten with a stick and suffered soft tissue injuries on the arm, back, buttocks which were classified as "harm." That complainant was awarded UGX 3,000,000/= as compensation for the violation of his right of protection from torture or cruel, inhuman or degrading treatment or punishment.

In the instant case, C in this matter was also assaulted almost in a manner similar to the treatment that the Complainant in the above cited precedent complaint experienced, and given the aforementioned five components and the aforementioned case of **MATIYA BYABALEMA AND OTHERS VS UGANDA TRANSPORT COMPANY SCCA NO 10 OF 1993,** I award to C a sum of UGX 5,000,000= (Uganda Shillings five million shillings only) as general damages in compensation for the violation of his right offreedom from torture or cruel, inhuman or degrading treatment or punishment.

### **(b) Violation of the right to personal liberty.**

In the case of **AGABA BERNARD VS ATTORNEY GENERAL UHRR (2008-2011),** the Tribunal held that the complainant was entitled to compensation for the violation of his right to personal liberty, and that it was the practice ofthe Tribunal to award UGX 2,000,000= (Uganda Shillings two Million) for every seven (7) days of unlawful confinement.

Taking into consideration the value of money and what it can purchase at present, as well as the time taken for C access a remedy, the afore cited rate used for every seven days, was UGX. 285,715= per day of detention which I am raising to UGX 300,000= per day due to the depreciation ofthe value of money. <sup>I</sup> am therefore applying the rate of UGX 3000,000= per day to determine the quantum of the award for C who was illegally detained for 50 days out of the aforementioned total of 52 days.

Accordingly, I award C a sum of UGX. 15,000,000/=( Uganda Shillings fifteen million thousand shillings only) as general damages in compensation for the violation of his right to personal liberty as already determined and ruled in this decision.

I am therefore ordering R to pay to C, UGX 15,000,000= (Uganda Shillings fifteen million shillings only) as general damages in compensation for the violation of his right to personal liberty for the period of 50 days.

I therefore order as follows.

#### **ORDERS:-**

- 1. The complaint is allowed wholly. - 2. R (Attorney General) is ordered to pay to C, Esenyo James Isaac a total sum of UGX 20,000,000= (Uganda Shillings twenty million shillings only) for the violation of his two rights broken down as follows. - a) For the violation ofthe right offreedom from oftorture or cruel, inhuman or degrading treatment or punishment UGX 5,000,000= - b) For the violation ofthe right to personal liberty UGX 15,000,000=

| TOTAL | UGX<br>20,000,000= | |-------|--------------------| | | |

3. Interest at the rate of 10% per annum to be paid on the total sum of UGX 20,000,000/= (Uganda Shillings twenty million only) from the date ofthis decision until payment in full.

- $4.$ Each party shall bear their own costs. - $5.$ Either party not satisfied with the decision of the Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date of this decision.

So it is ordered.

$\cdot$

DATED AT SOROTI ON THIS ....................................

DR. KÁTEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER