Etoori Abraham v Attorney General (Complaint UHRC 70 of 2010) [2019] UGHRC 9 (18 September 2019)

Full Case Text

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#### THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

## **HOLDEN AT KAMPALA**

## **COMPLAINT NO: UHRC/70/2010**

ETOORI ABRAHAM :::::::::::::::::::::::::::::::::::

**AND**

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

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

The Complainant (C), Etoori Abraham alleged that on $10th$ October 2009, he was arrested by a Police man who was wearing ordinary clothes, on the allegation of theft, and detained at Katwe Police Station. That on 13th October 2009, he was transferred to the Rapid Response Unit (RRU) base at Kireka but while he was there, he was beaten severely as a result of which he suffered serious bodily injuries. That he was taken to court on 23rd October, 2009 and released on court bail, and then he went for medical treatment. That the result of the brain scan indicated that he had suffered serious brain damage as a result of the assault that he had been subjected to.

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

R who was represented by two counsels (RCs) namely, State Attorneys Kiyingi Josephine and Musota Brian, denied liability and opted for putting up a defense in this matter. However, the aforementioned two RCs only cross examined C and his three witnesses. There was no defense case put up to rebut C's allegations as had been initially suggested by R's side.

## **Issues**

The issues to be resolved by the Tribunal are:

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

C was expected to discharge the duty of proving his case against R to the satisfaction of the Tribunal, as required under Section 101 (1) of the Evidence Act Cap 6, which provides that:

Whoever desires any court to give judgment as to any

legal right or liability dependant on the existence

of facts which he or she asserts must prove that

the facts exist.

As well as Section 102, 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.

However, the standard of proving this claim against R is on a balance of probabilities.

Let me now resolve the aforementioned four issues that have been raised before the Tribunal.

#### Whether C's right of freedom from torture or cruel, inhuman or degrading $$ treatment or punishment was violated by State agents.

C, Etoori Abraham testified that he was 59 years old and married to one wife with whom they had three biological children and one adopted child. That on 10th October 2009 at around 11:00 a.m., while he was at a workshop where he used to work in Nalukolongo, he was approached by a Policeman who was wearing ordinary civilian clothes. That the Policeman came, arrested him, handcuffed him and took him to Katwe Police Station from where he was informed that he had been accused of stealing. That from Katwe Police Station, he was taken to the Wembley operation base in Kireka and while he was there sitting on the ground, a man wearing casual clothes came with a stick 50cm long, and started beating his fingers and toes for about 2 to 3 minutes while asking him to reveal where the stolen items were.

C testified further that he was taken to another building and some other man started beating his head while he, too, was asking him to tell him about the crime he had committed. That after that the handcuffs were removed from his arms and he was handed over to a group of four men who were also wearing civilian clothes and one of them holding a case file. That they asked him if he had stolen the alleged items and when he denied, one of them begun slapping him while another one asked more questions. That one of them got a baton and began hitting his knees, elbows and ankles. That another man stood behind him and started slapping his head but ordered him not to look at him. That this assault and interrogation took about 10 minutes. That when they did not get the answers they expected from him, they ordered him to sit down and a certain man came and kicked his back many times, calling him a thief. That after this experience, he was handed over to the man who had brought him from Katwe Police Station, and he was taken back to Katwe Police Station. That at that time he could not walk or lift his hands easily, and his eye could not see properly.

C added that he used to eat food once a day, that is at around 3:00 p.m. That the food included, posho and beans only. He also stressed that he was not given any medical treatment until he was taken to court and released on bail. That as a result of the beating he suffered, his whole body was in pain, his joints were swollen, he had bruises and his eye could not see properly. That he also felt severe pain in the head, chest, back and the joints of all his limbs. That he went to Kadic Hospital and Kampala Imaging Center where the scan was done from. That after examinations,

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he was given anti-biotics, pain-killers and anti-inflammatory treatment. That the doctor told him that he had a blood clot in the brain and his right ear-drum had been damaged. C also claimed that his right eye could not see well, and that he could not swim 6 feet deep in the water because if he attempted to do so, he would get pain in the ears. That because of the pain he used to feel in his joints, he had to take pain killers all the time.

During cross-examination, C affirmed that he was arrested on 16th October, 2009 and released on 23rd October, 2009 when he was produced before court. He also admitted that he had no documents to prove the dates of his detention. However, he nevertheless maintained his claim regarding the duration of his detention and stressed that the relevant lockup register could be obtained from Katwe Police Station.

- CW1, Ruth Etoori testified that in 2009 but towards the end of that year, her husband went to work in Nalukolongo but on the following day, he was brought back home by two male and one female detectives wearing casual clothes. That he was handcuffed and barefooted. That she was told that her husband had stolen some things which were not specified, and that the detectives wanted to search the house. That her husband was first held at a Police Station near Kibuye round about, and later on at Kireka VCCU. That she and Etoori Timothy visited her husband at Kireka and found him in a bad state of health which showed that he had been tortured. That he could not hear and he had been badly beaten. That his body was swollen and he was limping. That her husband told them that he had been beaten and his ears had been injured. That he complained of pus in one of the ears and his hearing was not good at that time. - She testified further that she visited her husband once and that he was detained for about one week. That when he returned home he was a broken man.

During cross-examination she clarified had she had been married to C since 1985, adding that when the police detectives came to her home, they introduced themselves to her. That her husband's life at the time she testified was still poor as a result of the said torture incident, although she was not sure whether his ear still had pus because she had taken long without checking it.

CW2, Timothy Etoori testified that on 10th October 2009, he received a call from a person he did not know informing him that his brother had been arrested and detained at a Police Station $\alpha \in \mathcal{A}$ near Kibuye round about. That he went to the Police Station that evening but the Police officers he found there denied having him. That he perused the Lockup register and saw his name but the Police officers told him that he was late and they could not let him see his brother. That on the following morning, he went back to the Police Station and he was allowed to see C who appeared to be fine. That C informed him that some items had been stolen from his work place and that is why he had been detained. That he went to get a lawyer to handle the case but when he returned, C was not at the Police Station. That he was informed that he had been taken for questioning. That after he was brought back he was transferred somewhere else.

CW 2 added that on 18th October 2009, he received a call from someone he did not know instructing him to take C's wife to Kireka VCCU base. That when they reached there, they found C outside the cell but he was limping. That one of his eyes was swollen and he could not open it to see. That C talked to his wife after which the two left. That C saw visitors again at Kibuye Police Station and when they went to court, C was released. That a one Samuel Malamba stood surety for him. That he himself took C to his home and after C had had a bath, he himself went back to his home.

During cross-examination, the witness stressed that he visited C at Katwe Police Station and he saw him. That at that time, C was in good health condition. That when he found him at the VCCU base in Kireka, one of his eyes was swollen. That at VCCU, C only talked to his wife while he was outside the cell, while he himself was only observing from a distance of about 2 to 3 meters.

The Landing?

CW3, Dr. Karung Sam said that he was a medical doctor working at Mulago Hospital. He interpreted C's medical report and said that C had been treated from Kadic Hospital in Bukoto for sometime between 2009 and 2010. That on 25th November, 2009, C reported a case that he had been tortured on a date he could not clearly specify. That although C appeared to be confused, he had nevertheless not lost consciousness and he had no convulsions. That he had a discharge from one of his two ears and the diagnosis made indicated that the eardrum had been raptured. That the CT scan showed a collection of water on the right side of the skull and this was indicated as labroid suture and diceste, meaning that the water was in some area towards the back of the skull. That the left bottom of the left side of the brain had died. And that the reports had been signed and stamped on 2nd March, 2010.

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CW 3 clarified that if a person is slapped on the ear, the force exerted normally leads to pressure being generated, and the pressure tends to escape through the weakest part close to the ear drum. He added that the two major results that can occur are:

- 1. Total loss or impaired hearing; - 2. The other major effect would be an infection.

The witness also added that the hole on the eardrum could heal naturally but in some cases it does not heal, at all.

C's medical report from Kadic Hospital was admitted with RC's consent as his first exhibit $(CXI)$ .

In respect to the medical document from Kampala Imaging Center, CW3 stated that a CT Scan of the brain was done based on the history that C had narrated. That the major finding was a fusion of water in the right side of the skull, and that the right labroid was prominent. He stressed that the scan was done in order to indicate clearly the abnormality that had been detected. That there was a dead part of the brain on the left bottom of the brain. That this confirmed the infection in the right part of the middle ear and the water that had collected as a result of the trauma as was evidenced by the widened sutures and the dead part of the brain.

CW3 also interpreted the medical report dated 8th February, 2010 authored by Dr. Byaruhanga, the Ear, Nose and Throat(ENT) Specialist, which indicated that the eardrum had been treated and the pass discharge had cleared.

The medical report was also admitted with RC's consent as C's third exhibit (CX3).

During cross-examination, CW3 clarified that when C was seen by Dr. Byaruhanga, the ear was dry and the perforation had healed. He also clarified that the perforation of the eardrum could be caused by a foreign infection, adding that he had appeared before the Tribunal only to interpret the medical reports but he had not personally authored them. That a slap was on the same right side hence rapturing the suture but the effect on the left was incidental.

As it was indicated at the beginning of this decision, R's side never called any witnesses to adduce evidence in rebuttal of C's prosecution evidence. Accordingly, I shall adopt the principle that was upheld in the case of MARTIN EDEKU VS. ATTORNEY GENERAL (1995), XI **KALR 24,** in which the court held that:

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

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 states that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. And, Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR) of 1986 state that human beings are inviolable, and therefore respect for life and integrity of a person should be upheld; and further that all forms of exploitation and degradation of man particularly torture, cruel, inhuman or degrading punishment or treatment shall be prohibited.

Article 24 of the 1995 Constitution of the Republic of Uganda also prohibits the violation of an individual's right of freedom from torture or cruel, inhuman or degrading treatment or punishment. Specifically, the Constitution provides that "no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment of punishment." Moreover, this same right is enshrined under Article 44 (a) of the Constitution as a non derogable right under whatever circumstances, including the most extreme times of war or a state of emergency.

Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in brief, the UNCAT) of 1948, provides an internationally accepted legal definition of torture, which states that torture is:

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

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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 or incidental to lawful sanctions.

In the case of FRED TUMURAMYE VS GERALD BWETE AND 10 OTHERS, COMPLAINT NO. UHRC 264/1999, it was held that the major elements of the UNCAT definition of torture were:

- That the act inflicts severe suffering or pain on the victim, whether physical or mental. - That the act is intentionally inflicted irrespective of whether it is direct or indirect. $\blacksquare$ - That the act is carried out for the purpose such as obtaining information or a confession, $\bullet$ punishment, intimidation or coercion or for any reason based on discrimination of any kind: and - That the act is carried out 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.

In this decision, I have adopted the above definition and the elements of torture mentioned above. Therefore, once I find the aforementioned elements proved, then I shall consider that the first issue I have been discussing to have been proved by C.

According to C's evidence, the assault that he was subjected to at the VCCU base in Kireka was very intense, and it seriously injured his figures, toes, the knees, the elbows and ankle joints, the back and especially the head. And all this was done to force him to admit that he had indeed stolen the properties that were alleged to have been stolen by him, and to reveal where they were. The evidence that C and his three witnesses adduced clearly reveal that the assault on C resulted into severe pain and suffering being experience by him, with the worst effects being experienced in his head. The medical exhibits also scientifically corroborate this fact. Moreover, RC's side never rebutted all this credible evidence and RC consented to all C's exhibits being admitted into his evidence.

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$\frac{1}{2\pi}$ I am therefore convinced that C's evidence has on a balance of probabilities proved that C indeed suffered severe pain or suffering which was intentionally inflicted on him by the aforementioned VCCU operatives. The same operatives assisted by Police Officers attached to Katwe Police Station, carried out this unlawful act on C while they were on their official duty.

I therefore find on the balance of probabilities, that the aforementioned State agents indeed both individually and severally, violated C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

I therefore resolve this issue in the affirmative.

## Whether C's right to personal liberty was violated by State agents. $$

C testified that when he was arrested on 10th October 2009 at around 11:00 a.m, he was taken to Katwe Police Station. That he was thereafter taken to the VCCU base in Kireka and then back to Katwe Police Station, and that on 14th October, 2009, he was taken back to Kireka and then again back to Katwe Police Station and detained. That he was released after he was produced before court on 23rd October, 2009 and released on bail.

Article 9(1) provides that everyone has the right to liberty and security of person; and therefore no one shall be subjected to arbitrary arrest or detention. In addition, Article 9 (3) of the same Convention provides that everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release.

Furthermore, the African Charter on Human and People's Rights, 1986 also provides under Article 6 that every individual shall have the right to liberty and to the security of person. That no one may be deprived of his freedom except for reasons and conditions previously laid down by the law.

The 1995 Constitution of the Republic of Uganda adopted the above mentioned provisions under Article 23 in order to ensure that procedural requirements and exceptions to the deprivation of

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personal liberty are expressly provided for. Article 23 of the Constitution therefore provides for the right to personal liberty and is to the effect that no person shall be deprived of the same. Clause 1(a-h) provides for exceptional circumstances under which a person may be deprived of the said right, and they include: execution of a sentence or court order, for the purpose of bringing the suspect person before a court; prevention of an infectious disease; the purpose of educating or welfare of a person below the age of eighteen; in case one is suspected to be of unsound mind; for the purpose of preventing unlawful entry into Uganda; and also other reasons as may be authorized by law.

Article 23(4) further provides that a person arrested, restricted or detained upon reasonable suspicion of his or her having committed or is about to commit a criminal offence under the laws of Uganda shall be charged in a court not later than 48 hours from the time of arrest.

Therefore, in my in consideration of C's allegation regarding the violation of his right to personal liberty, I have sought to establish whether C was actually arrested and detained by the aforementioned State agents, whether the detention was in accordance with the exceptions provided under Article 23(1a-h), and whether the requirement to produce C before court not later than 48 hours was complied with.

## In STEPHEN ERAU AND ORYEM D/ASP AND 3 OTHERS; UHHR [2002]35, it was held that:

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

I am also cognizant of the fact that the duty to prove that the detention was lawful lies on R. On the other hand, my take is that once it is proved by C that he was detained and his right breached, that would be sufficient for the Tribunal to discharge the burden of proof from C. For instance in the case of SAFATI KIWANUKA VS KAMULI DISTRICT ADMINISTRATION, (1994-95) HCB 74, Justice Kato held that:

> Once the Plaintiff has proved the fact of his arrest, it is up to the defendant to prove that the arrest was lawful.

C vehemently claimed that he was arrested on 10th October, 2009 and detained on allegation of theft. His evidence in this respect was corroborated by CW1 and CW2, who visited him when he was in detention, and the latter who also went with him to his home after his release. RC crossexamined C, CW1 and CW2 but their evidence was not shaken in any way in this respect. Moreover, I did not find any contradictions or falsehoods in the testimonies of the aforementioned people. C clearly stated that he was finally produced in court on 23rd October, 2009 when he was released on bail. Implying that C was detained for a period of 14 days. This aspect of C's evidence was also not challenged by R's side in any way, at all.

As I have already stressed, R did not present any defence evidence to rebut C's prosecution evidence. Neither was any explanation given as to why C was arrested and detained by the aforementioned State agents for a period exceeding 48 hours.

Article 23 (4) (b) part (a) of the Constitution notwithstanding, I am left with no option but to $\frac{1}{2}$ come to a conclusion that R failed to satisfactorily justify the detention of C beyond the legal 48 hours.

C also claimed that he was not given any medical treatment while he was in detention for the serious injuries that were inflicted on him by his tormenters. Although C did not raise a separate issue in this regard, nevertheless, access to medical treatment happens to be a part of the enjoyment of the right to personal liberty as provided for under Article 23(5) (c) of the Constitution, which provides that where a person is restricted or detained, he or she shall be allowed access to medical treatment, including treatment that may be given at the request and at the cost of that person. Even if C did not ask the Police for treatment for the injuries he suffered at their hands, it was incumbent upon the Police to have known that C needed treatment and therefore, to have taken him for treatment. I note with concern and disapproaval that the interest of the aforementioned State agents who detained C, and those who interrogated him was not to preserve or spare his life, but rather, to force him at any cost to reveal where the alleged stolen properties were. I must also remind the Police that the Constitution of Uganda under Article 212(a) on operational regulations, and the Police Act Cap 303 under Section 4(1) a), both place on them a duty to protect life and other rights of an individual. The right to access medical $\scriptstyle\frac{3}{4}$

treatment is vital to an individual's life because the healthy lives of the citizens are the ones that determine the vitality of the State and the Nation. R did not also offer any explanation as to why C was not enabled to access medical treatment for the many days he was detained.

Therefore, in concluding on the second issue I have been considering, I have assessed the adduced evidence and found that C's right to personal liberty was indeed violated by State Agents operating at Katwe Police Station and the VCCU base at Kireka, when they detained C beyond 48 hours and for 14 days without plausible explanation and also, by failing to enable him to access medical treatment while he was in their custody.

Accordingly, C's claim in respect of the second issue that I have been considering for resolution also succeeds.

## Whether R (Attorney General) is liable for the violations. $$

The aforementioned State Agents who violated C's two rights were employed by government to execute State duties in line with the provisions of the Constitution of Uganda and the Police Act Cap 303. Therefore, the Attorney General of Uganda who is the State representative in civil proceeding to which government is a party, as per Article 119(4) (c) of the Constitution, must be held vicariously liable for the actions of the aforementioned State agents, which resulted into the violation of C's two rights.

## Whether C is entitled to any remedy. $$

In this respect, I shall proceed as per Article 53(2) (b and c) of the 1995 Constitution of the Republic of Uganda, which provides that the Uganda Human Rights Commission may if satisfied that there has been an infringement of a human right order for compensation to be paid to the victim or order any other remedy or redress. C therefore deserves compensation to be paid to him.

However, as I determine the quantum of damages to be paid for each of the two violations, I shall take into account the case of MATIYA BYABALEMA AND OTHERS VS UGANDA TRANSPORT COMPANY SCCA NO 10 OF 1993, where it was stated that:

![](1__page_23_Picture_0.jpeg) treatment is vital to an individual's life because the healthy lives of the citizens are the ones that determine the vitality of the State and the Nation. R did not also offer any explanation as to why C was not enabled to access medical treatment for the many days he was detained.

Accordingly, C's claim in respect of the second issue that I have been considering for resolution also succeeds.

#### **Whether R (Attorney General) is liable for the violations.** $$

### Whether C is entitled to any remedy. $$

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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.

Let me now consider the compensation to be paid to C.

## (a) Violation of the right to personal liberty.

In the case of DAVID ORUK & 2 OTHERS VS ATTORNEY GENERAL HCCS NO.2/96, the plaintiffs were illegally detained for 18 days, and were awarded UGX. 3,000,000/ $=$ each as general damages. However, I note that this case of David Oruk was decided in 1996 by the High Court of Uganda. Therefore, although the aforementioned High Court award provides me with some guideline, I must remain cognizant of the current value of the money and what it can help C to achieve. On the other hand, I am taking into consideration the 48 hours or equivalent two days allowed to security agencies for legal detention of suspects, and therefore retaining only 12 days as the period of illegal detention of C by the aforementioned State agents.

Therefore, I shall order R to pay C, UGX 5,000,000= (Uganda Shillings Five million shillings only) as general damages in compensation for the violation of his right to personal liberty for the period of 12 days.

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

The quantum of damages in this respect shall be determined while taking into consideration the following elements or facts:

- a) That the right involved is non derogable. - b) That C suffered very serious injuries, especially those on the head which were devastating. - c) That C was never found guilty of the charges that were lodged against him. - d) Relevant case precedents - e) The value of the money to be awarded and what it can purchase at present.

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In the case of EBENU FRANCIS, ENYOPU JAMES VS ATTORNEY GENRAL, UHRC NO. 258/2005 which was decided on 27th March, 2014 at Soroti, the Complainant was detained by UPDF Soldiers for 9 days and also beaten severely to force him to reveal the whereabouts of the gun he was suspected to possess illegally. He was also tied with a rope around his neck, thrown in a ditch and also beaten with metallic wires. Former Commissioner Agaba Maguru awarded the Complainant UGX 8,000,000/= (Uganda Shillings Eight million only) as general damages in compensation for the violation of his right of freedom from torture.

Since C in the instant complaint was also assaulted in a manner largely similar to the treatment that the Complainant in the cited precedent complaint suffered but which assault for C resulted into far more devastating effects particularly on his brain and eardrum, and given the aforementioned five elements I have decided to take into consideration, I award to C a sum of UGX 15,000,000= (Uganda Shillings fifteen million only) as general damages in compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

I therefore order as follows.

## ORDERS:-

- 1. The complaint is allowed wholly. - $2.$ R (Attorney General) is ordered to pay to C, Etoori Abraham a total sum of UG. $20,000,000=$ (Uganda Shillings twenty million only) for the violation of his two rights broken down as follows.

a) For the violation of the right to personal liberty.................................... b) For the violation of the right of freedom from of torture or cruel, inhuman or degrading treatment or punishment $\ldots$ UGX 15,000,000=

## **TOTAL**

## $UGX$ 20,000,000=

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- Interest at the rate of 10% per annum to be paid on the total sum of UGX 20,000,000/= $\frac{10\% \text{ per annum}}{2000000000000000000000000000000000000$ $3.$ (Uganda Shillings twenty million only) from the date of this decision until payment in full. - Each party shall bear their own costs. $4.$ - Either party not satisfied with the decision of the Tribunal may appeal to the High Court $\overline{5}$ . of Uganda within thirty (30) days from the date of this decision.

So it is ordered.

$\mathfrak{t}^{\mathfrak{g}_\mathfrak{l}}$ DATED AT KAMPALA ON THIS ... DAY OF SEPTEMBER, 2019.

ate

DR. KATEBALIRWE AMOOTI WA IRUMBA

PRESIDING COMMISSIONER

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