Eyamu and 3 others v Attorney General (Complaint No. UHRC/SRT/005/2009) [2022] UGHRC 9 (25 January 2022)

Full Case Text

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#### **THE REPUBLIC OF UGANDA**

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

#### **HOLDEN AT SOROTI**

### **COMPLAINT NO. UHRC/SRT/005/2009**

**1. EYAMU CHARLES}**

**2. ADEKE HELLEN} :::::::::::::::::::::::::::::::::::::: COMPLAINANTS**

**3. ORION MICHEAL}**

**4. NAKIRYA JENNIFER}**

#### **AND**

#### **ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **{BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO}**

#### **DECISION**

The Complainants (Cs) Cl, Eyamu Charles and C3, Okion Micheal allege that on 2nd December 2008, they were arrested with a one Okwi David by Police Officers attached to Kidongole Police Post on the allegation of illegal possession of fire arms. That during their arrest, they were all severely beaten and detained at Kidongole Police Post but later released in the presence of the LCIII Chairperson of Kidongole Sub County. The Cl and C3 further allege that as a result oftorture, Okwi David sustained severe injuries as which led to his hospitalization at Kumi Hospital from where he was referred to Mbale Regional Referral Hospital for further management but died on the way on 17th January 2009 before reaching the Hospital.

Therefore, the Cs therefore prayed to the Tribunal to order the Respondent (R) to pay them compensation for the violation of their right of freedom from torture or cruel, inhuman or degrading treatment or punishment and David Okwi's right to life by State Agents.

Accordingly, as part ofthe requirements for continuity of a cause of action, Adeke Hellen (C2) was substituted for Okwi David in line with Rule 11(1) of the Uganda Human Rights Commission (UHRC) (Procedure) Rules 1998.

R who was on different occasions represented by Counsel (RCs) namely: Masaba Peter, Eric Mukisa Emmanuel, Topacho Juliet, Nakanabi Barbara, Ssenyonjo Madina who denied liability and opted for putting up a defense in this matter. However the aforementioned RC's only cross examined the Cs and their witnesses. There was no defense put up to rebut the Cs allegations as had been initially suggested by R's side. R was also given the opportunity to file submissions within one month but this was never done.

### **Issues:**

The issues to be resolved by the Tribunal are:

- 1. Whether Cl and C3's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State Agents. - 2. Whether Okwi David's right to life was violated by State Agents. - 3. Whether R (Attorney General) is liable for the violations. - 4. Whether Cs have a remedy.

The Cs were expected to discharge the duty of proving their case against R to the satisfaction of the Tribunal as required under Sections 101(1) and 102 of the Evidence Act Cap 6 laws of Uganda.

Accordingly, Rule 23(1) of the Uganda Human Rights Commission (Procedure) Rules provide that the standard of proving allegations is on a balance of probabilities.

In addition, I need to mention that this complaint file was initially handled by the Hon. Commissioner Retired Justice Gideon Tinyinondi (deceased) and former Commissioner Dr. Katebalirwe Amooti Wa Irumba. Therefore the record I shall be relying on in making a decision, is from them.

Let me now resolve the aforementioned five issues that have been raised by the Tribunal.

# **Issue 1: Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State Agents.**

**Cl, Eyamu Charles** testified that in December 2008 on a date he could not recall at about 2:00a.m, armed and uniformed Police Officers who were accompanied by the Local Area Chairman III came to his home and told him that they had come for a gun that himself, Okwi David and his son Okion Micheal (C3)used. That he told them that he did not have any gun so they started beating him, his wife and C3. That Okwi David was also brought from his home and beaten from where he was. That the Police Officers beat him (Cl) using sticks all over his body while kicking him. That at the scene, was the Officer in Charge(deceased) of the Police Post called Okello, Chairperson III a one Ochom Martine. That the latter did not beat him but he was just watching while a Police Officer was

beating him. That himself, C3 and Okwi were all beaten in the same way until 7:00a.m in the morning.

That they were all thereafter taken to Kidongole Police Post. That the distance from his home to the Police Post was about three miles, and they went while walking. That when they reached the Police post, they recorded their statements and thereafter taken to the cell and detained. That at night, they were blind folded and himself and Okwi taken to the bush. That while there, he was asked for the gun and when he said that he did not have it, he was asked whether he wanted to die. That himself and Okwi were taken to the bush twice and asked to produce the gun. That when he later talked to Okwi, they realized that they had gone through the same experience. That they were released after two days but told to keep reporting at the Police.

He added that later on, the area Member of Parliament Anite Among got to know about what happened and she visited them. That she encouraged them to file a case with UHRC. That while at Police, they were given a letter which was submitted to the Commission. That he was never taken to court and the matter died offjust like that.

He stressed that as a result of the beating, the third figure on his left arm got broken *(shows tribunal),* his back got swollen *(shows Tribunal)* and his private parts also got affected because he cannot perform marital duties. That his last born was 7 years old. That he could perform in bed but he was not as strong as he used to be. That he sought medical treatment from Bukedea Health Center and he was given documents.

During cross examination, Cl stressed that he knew Omoda Micheal because he was his brother working as a soldier in Moroto. That his brother never left him with his gun because he had never left his gun with any one. That he also had never seen him with a gun when he (Cl) was arrested. That Micheal came to

Kidongole Police Post and told the Police Officers that he was the one who had the alleged gun but that it was not missing because it was at his work place.

He confirmed that Okwi was brought from his home to his. That for him (Cl) was staying with C3. That Ochom Martin was the LCIII Chairperson and he never had a grudge with him. That he did not know why himself and Okwi who were arrested in the whole village

He further confirmed that he remembered the Police Officer called Okello but that he died. That Okello was the Officer in Charge Kidongole Police Post. That he did not know the names of the other Police Officers who tortured him. That they were all beaten from the same place and it was on the orders of Ochom.

# *The Release on Bond document was admitted with the consent of RC as CsXl.*

**C3, Okion Micheal** testified that he was a security officer working with Top Security Company based in Ntinda, Kampala. That he was married with one wife and three children.

That on 2nd December 2008 at around 2:00a.m, a one Okello, the Officer in Charge Kidongole Police Post came to their home and called his father Eyamu Charles (Cl) out and he did. That he- Okello told Clthat he was patrolling but later, a one Ochom the LCIII Chairperson came and told Cl that there were at his home looking for something and that he should give it to them. That Cl asked them what that thing was and they told him that they wanted a gun. That he (C2) was in the house but hearing everything. That Cl told them that he had never been in the army or any security organization to own a gun and further that he did not even know how to use it.

That the Officer in Charge called other Police Officers who had surrounded their home and he asked Cl where his family members were. That at that time it was dark. That at that time, he (C3) was seated on the verandah and they brought him closer to Cl and they started asking him (C3) about the gun. That the

Chairman gave orders to the police Officers to beat them and they started beating them using sticks, slapping them with pangas and kicking them. That he (C3) was kicked in the back. That while the Police was beating him and Cl, Okwi David was also brought. That they (himself, Cl and Okwi) were beaten until morning.

That in the morning when people started gathering, they were taken to Kidongole Police Post and detained for three days. That they were picked one by one to record statements. That one night, he was blind folded and picked from the cell and taken to a place he did not know and he was told that if he did not produce the gun, he was going to die. That when he was taken back to the cell, Cl was taken. That he (Cl and Okwi told him that what happened to him was what they experienced.

That on the following day, he made another statement and he was thereafter released on Police bond. That he sought medical treatment from a clinic near their home because he could not get the Police Form 3. That as a result of the beating, he sustained injuries in the back, buttocks and fingers. That Okwi David also sustained injuries which led to his death.

During cross examination, C stressed that he knew Omoda Micheal. That he was his uncle (Cl's brother). That he was 22 years old when he was arrested. That at the time of his arrest, the Police Officers and/ or chairman did not explain to him the connection between him and Cl or Okwi David.

He confirmed that had seen Omoda with a gun and that he also managed to see the Police officers who surrounded their house because he was seated on the verandah. That at their home, there were only three people that is; Cl, Okwi and himself.

He clarified that he was never beaten while at the Police post but he was picked from the cell at night alone and asked to reveal the gun was. That he did not know the officer who took him out at night.

**C4, Nakirye Jennifer** testified that in 2008 on a date she could not remember a one Okello the Officer in Charge Kidongole Police Post and the LC III chairman called Ochom came to her home and knocked on their door and asked Cl (her husband) to produce the gun he used. That Cl came out and denied ever having a gun. That he was asked if he had a wife and answered in the affirmative and she was ordered to come out of the house. That the LCIII Chairman instructed her to sit down and they asked if she had seen the gun C1 had or knew where it was. That she told them that Cl did not have a gun. That the Police Officers and Chairman spent the whole night at their home and he identified them in the morning. That she knew the Officer in Charge because he was working at the Sub County. That the Police Officers were dressed in maroon uniforms, rain coats, were armed with guns and pangas.

That they were told that if they did not produce the gun they would kill them but they told them that they had no gun. That that was when the Police Officers started beating her, Cl, C3 and Okwi.

That she was lifted up, someone was holding her legs and hands and beaten on the back and buttocks. That her legs got injured too. That she sustained a scar on the knee and back. That all of them were beaten randomly using sticks and kicked. That in the morning Cl, C3 and Okwi were detained at the Sub County Headquarters. That when they were being taken to the Sub County, their hands were tied and told to run there.

That Okwi was randomly beaten all over his body, kicked on the waist but she could not ask him to show her because he was her son. That Okwi died as a result of the beating . That Cl was kicked on the back and his testicles got swollen. That when she went back home, the Police also came back and told her that there was no gun but if they had accepted ,that a search be done, they would have done it and proved that there was no gun in their possession. That Cl, C3 and Okwi were released from the Police after three days. That they were weak, had stick marks on their bodies. That herself and Cl went to Bukedea Health Center for treatment but she did not know where the rest went.

That she got medication but Okwi died because of the beating. That as a result of the beating, she sometimes fails to work because of the injury in her knee. That Cl cultivates while C3 was a security guard.

During cross examination, C4 confirmed that she was beaten by people who were wearing maroon uniforms in 2008. That in that year, maroon uniform was Police uniform. That as a result of the beating she sustained scars on her knee and back. That she submitted her medical documents to UHRC and on those documents she was given Xpen.

She stressed that Okwi died as a result of the beatings inflicted on him because he never used to fall sick before he was beaten. That she did not examine him but it was after he was tortured that he developed complications and died. That she was tortured by the Officer in Charge, LCIII Chairperson and other Police officers and Cl, C3, Okwi and C2 witnessed her being tortured. That the Cl and the rest were not detained for one day. That they were arrested at night but she couldn't recall the time. That they were not arrested from the same place but they were all taken to the Sub County from their home. That Okwi was taken to their home by Police Officers and beaten from there. That the Police officers who arrested her were the same ones who arrested Okwi only that some of them had remained at their home. That Kidongole Police Post was the nearest Police Post from their home and it was two kilometers away. That before the incident took place, she knew the Police officers at the Police post and in that night, she saw more than ten of them. That the police beat them using sticks and kicks and she went for treatment after three days.

She clarified that she was not detained at the Police Post because she had a baby.

During re-examination, C4 stressed that they were beaten at night and she reported the matter at Bukedea Police Station also given a form.

**CW1, Ateri Micheal** testified that on 2nd December 2008 at 2:00a.m, he saw uniformed Police officers beating Okwi, Cl, C3 and C4. That the Offcier in Charge of Kidongole Police Post was among them. That the Police officers were putting on maroon uniforms.

That he came to see them after he was informed by a certain child that Police Officers had gone to Cl's home. That his own home was about a quarter a mile from the Cs. That he knew the Police Officers, including their voices and that there was moon light. That the Police was saying that they wanted a gun from the Cs and victim. That C4 had an injury on the leg, Okwi had pain in the waist while Cl and C3's backs, buttocks and legs were swollen. That he noticed the effects after their release. That the Cs and victim were taken to the Sub County and on the following day when he went there, the Police refused to release them. That they were released after three days after paying UGX 15,000/= to the Officer in Charge. That himself and Cl's father were the ones who went to see them. That they were never given any receipt for the payment made. That when they were released, they were all not feeling well, so they went to Bukedea Health Center. That Okwi was not feeling well and he was transferred to Kumi Hospital. That after two days, he was transferred to Mbale Hospital but he died on the way. That he was personally taking him to hospital because when he died, he was among the people who took his body to the Sub County since the Police had beaten him. That the officer in Charge took the body to Mbale Hospital for checkup and after that he was buried.

That Okwi never used to be a sickly man. That after burial, the postmortem report was obtained and they were called at Bukedea CPS and told that Okwi died of another disease and not injuries. That the family of Okwi did not believe that information so they came to UHRC. That the Police contributed one bag of posho and 1 bag of beans. That Okwi was 36 years old married with one wife and seven children.

During cross examination, CW1 clarified that the Cs were his neighbors because their homes were about a quarter a mile from his. That the Police Officers were wearing a maroon uniform and they were from the Sub County. That the Officer in Charge was wearing khaki uniform and he was present during the arrest. That C4 was beaten with a panga, sticks and kicks. That he checked the Cs who had wounds on the buttocks because they were his close people. That he was asked to pay the money because he wanted them released. That he was present when Okwi's body was being examined because it was done in the open, that he did not know whether the man who was present was a doctor or not. That he did not know when Okwi was released from Kumi Hospital. That he did not know what description of torture was on the Cs medical forms. That he was the only one who was there when the Cs were being beaten. That C4 may not have seen him to be present because it was at night. That he did not know the number of Police officers who tortured the Cs because it was at night. That they were more than four. That he saw the Police Officers and a one Okello was one of them. That the Police officers had guns and pangas but they did not use the pangas in that night.

**CW2, Dr. Olupot Benard** testified that he was a medical doctor, Administrator and a farmer. That he held a Bachelor's Degree in Medicine and Surgery 1998 and a Masters Degree in Surgery of Makerere Universoty in 2005. That he had about 17 years of working experience.

That he did not have his employer ID because it expired but only had his national identity card. That he had worked in Kumi Hospital between 1999 and 2002, Mulago Hospital between 2002- 2005 as a senior Health Officer (post graduate doctor). That he came back to Kumi and worked from 2005 to 2010 as a specialist doctor and from 2010 to 2014 he worked at Kagando Missionary Hospital as a Deputy Medical Doctor and as a surgeon. That from 2014 to date, he was working at Kumi Hospital as a Medical Doctor and a surgeon.

That he also did consultancy in the DRC, Togo, Liberia and Madagascar.

The witness identified PF3 in respect of **C4** Nakirya Jennifer dated 12th December 2008 and said that the nature or the injury on C4 were stick marks on the back, ribs, thigh and left eye. That she went to the facility with multiple soft tissue injuries and no fractures. That the injuries were caused by a blunt object such as a stick, brave hands. That the physical effect of the injury on the eye could lead to blindness but for the other injuries, the patient would recover. That they were classified as harm.

## *PF3 in respect ofNakirya Jennifer was admitted with the consent ofRC as C4X1*

CW2 also identified PF3 in respect of **Cl** which was issued on 12 December 2008 where upon examination, he was found with stick marks and bruises on the forehead, right hand, left hand, and first finger of the left hand and on the buttocks. That he had multiple soft tissue injuries but he was going to heal/recover. That the findings were classified as harm

## *The PF3 in respect ofCl was admitted with the consent ofRC as C1X2.*

During re-examination, CW3, Dr. Olupot Benard clarified that PNO meant Principal Nursing Officer and that this category could examine patients. That PNOs were not allowed to fill PF3 and in absence of a Medical Officer, a Clinical Officer would fill it. That he knew Dr. Ruth's signature.

As I had earlier indicated at the beginning of this decision, R's side did not present any witnesses or defence to rebut the Cs prosecution evidence. However RCs cross examined all Cs and their four witnesses. R's side also did not file submissions in defense of the matter.

Accordingly, the violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment is prohibited under several legal frameworks. For instance, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 provides that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Similarly, Article 5 of the African Charter on Human and Peoples Rights (ACHPR) of 1986 provides that

Every individual shall have the right to the respect of the dignity inherent in a human

being and to the recognition of his legal status. All forms of exploitation and degradation of

man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment

and treatment shall be prohibited.

Furthermore, Article 24 of the 1995 Constitution of the Republic of Uganda prohibits the violation of an individual's right of freedom from torture or cruel, inhuman or degrading treatment or punishment, and it states that:

No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment of punishment.

The foregoing provision implies that there are no exceptions to the violation of this provision. Moreover, Article 44 (a) of the Constitution provides for the same right as non-derogable under all circumstances in both peace and war time.

The Macmillan School Dictionary defines "torture" on page 779, as "extreme physical pain that someone is forced to suffer as a punishment or as a way of making them give information; or to hurt someone deliberately in a very cruel way as a punishment or in order to make them give information"

However, the aforementioned Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) defines "torture" much more specifically and clearly under its Article 1, 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 or 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 only from, inherent in or incidental to lawful sanctions.

The aforementioned definition raises major elements or ingredients which include:

- 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.

- That the act is carried out for the purpose such as obtaining information or a confession, 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 addition, in the case of **IRELAND VS UNITED KINGDOM (1978) 2 EHRR 25,** the court differentiated **"torture"** from **"inhuman treatment or punishment"** and from "degrading treatment or punishment" by noting that **torture** required a deliberate inhuman treatment causing very serious and cruel suffering; whereas **inhuman treatment or punishment** involved the infliction of intense physical and mental suffering which reached a minimum level of severity; and further that **degrading treatment** required ill treatment designed to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly, breaking their physical or moral resistance.

I have therefore sought to determine whether the actions committed against the Cs constitute "torture" in line with the afore cited UNCAT definition, or whether the acts reveal only the ingredients of "cruel, inhuman or degrading treatment or punishment" as highlighted in the above case.

According to the evidence adduced by C1, it is revealed that the assault he was subjected to was intense which seriously injured his back, left arm and his private parts. All this was done so that he could tell could reveal where the gun he allegedly had was. The evidence adduced by C3, C4 and CW1 (Ateri Michael) clearly revealed that the assault on Cl caused him severe pain and suffering which effects were more evident on the his back and left arm. This pain was not only physical but also mental because after they were taken to the Police Post, he was blind folded and taken to a bush and threatened to produce the gun if he did not want to be killed.

In respect of C3's evidence, it was also revealed that the assault occasioned on him by the aforementioned Police Officers was intense which caused him pain and injuries in his back, buttocks and fingers. And this was all done to him so that he could reveal where the gun Cl allegedly had was. C2's evidence was corroborated by that of CW1 and partly that of C3 who saw him being beaten. The pain that C3 suffered was not only physical but mental because when he was in detention he was picked from the cell, blindfolded and taken to a place he did not know and asked to produce the gun if he did not want to be killed.

In regard to the evidence adduced by C4, it was also revealed that the assault occasioned on her was less severe as it injured her knee. This assault was carried out because the Police wanted them together with Cl, C3 and Okwi reveal the whereabouts of the gun they allegedly had. Therefore, her evidence clearly revealed that she suffered cruel, inhuman or degrading treatment or punishment.

Accordingly, Cl and C4 adduced medical evidence through an expert witness. However, the witness testified that the two Cs evidence contained anomalies that were inconsistent with medical practice. The evidence on the Police Forms presented by Cl and C4 were to a big extent inconsistent with the evidence adduced in examination in chief and cross examination. Therefore, there was no way the evidence adduced through C1X2 and C4X1 would be considered as truthful and a mere exaggeration of the injuries that were sustained. .

In addition, C4 adduced evidence in respect to C3 that was rather exaggerated. This was more pronounced in the aspect of the parts in which C3 was beaten that is; on the waist and yet, the latter only mentioned that he was beaten on the back, left arm, buttocks, legs. This piece of evidence is also disregarded in that respect as inconsistent.

Also, Cl, C2, C4 and CW1 adduced evidence that they were beaten from 2:00a.m until morning. I find this piece of evidence also questionable because if indeed a person was beaten from that time until morning/day break, them he or she would not be able to walk or run a three mile distance to the Police Post. This also implies that the effects would be worse than those narrated by in the evidence or even the exhibits that they produced.

Regarding all the above evidence adduced by the Cs, R never rebutted by way of presenting a defense or filing submissions. No explanation whatsoever was given by R regarding the injuries that the Cs sustained. RC cross-examined the Cs and their witnesses and just like I have already noted in the analysis of the Cs evidence, inconsistencies were noted in some particular aspects oftheir evidence (both direct and scientific). Therefore that evidence was disregarded and maintained that which was consistent or corroborative.

In that premise, I am therefore convinced that the Cs evidence has on a balance of probabilities proved that C1 and C3 indeed suffered severe pain or suffering which was intentionally inflicted on them. On the other hand, C4 on her own was subjected to cruel, inhuman or degrading treatment or punishment. These acts were committed by the aforementioned Police officer while executing their official duty.

In respect to C2's adduced evidence, the victim's right in respect to the violation of torture abated when he passed on. Therefore, I shall instead be looking at his under the next issue.

I therefore find on a balance of probabilities that the aforementioned State Agent violated the Cs right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

I therefore resolve this issue in the affirmative.

## **Issue 2: Whether Okwi David's right to life was violated by State Agents.**

**C2, Adeke Hellen** testified that she was a widow to Okwi David. That she had five children, namely; Asele Esther 15years old in Senior one, Ikiring Christine 12 years in Primary seven, Ekatali Moses seven years old, Kedi Barbara six years old and Akwi Rebecca whom she bore with the deceased. That some of the children were being taken care by her sister.

That on a date she could not recall at about 2:00a.m, a Police Officer came to their home and asked Okwi to come out and when he did, he took him to a place she did not know. That she could tell that they were Police Officers because they were wearing Police uniform.

That on the following day, a one Aput one of the elders in the village came to their home and told her to give him evidence as to whether Okwi had a gun. That she was taken to Cl's home where they (Okwi, Cl and C3) were being beaten from using sticks, kicks and punching them. That she told the Police that Okwi did not have a gun. That Okwi's neck, ribs and the bone at the chest were broken. That from Cl's home, they were all taken to Kidongole Police Post where they were detained for six days and released. That Okwi went to seek medical Treatment at Ongino Hospital in Kumi. That he (Okwi) kept on passing blood in urine and his stomach kept swelling. That he was admitted at the hospital for three days and he passed away. That his body was examined at Mbale Regional Referral Hospital. That during the burial, the Police offered a bag of posho and beans and that was all they ever received from the government.

During cross examination, C2 clarified that she went to Cl's home at around 10:00am in the morning. That she found Okwi, Cl and C3 tied with ropes. That she also found Police Officers beating Okwi. That she followed them to Kidongole Police Post. That when Okwi was released, he was carried up to their home because he could not walk. That Okwi sought treatment after one week.

**CW2, Dr. Olupot** identified the medical document as that issued by Kumi Hospital, bore the stamp and signature of a medical doctor. That it was certified on 24th October 2011. That the document was authored by Dr. Chebet, Dr, Ruth Obaikot and Dr. Mulinga whom he knew because he mentored them as his young colleagues.

That the documents were certified by Dr. Ruth Obaikot, the Medical Director between 2010 to 2013. That the document was in the names of Okwi David who was admitted on 14th January 2009 and referred on 16th January 2009. That a referral form was a form in discharge.

That in the clinical notes, the patient was from Bukedea- Kidongole Sub County with a history of progressive body weakness which had lasted two weeks. That he also had chest pain and cough -pain of about one month. That he also had urinary problems because he could not contain urine and it was leaking.

That the examining officer in view of cough and chest pain, said that he could have TB ruling out immune suppression. That the officer initiated IV fluids to optimize his condition and ordered for some investigations such as HIV test, TB and blood work up such as routine counselling.

That the patient was reviewed on the next day by Dr. Chebet and he noted that the patient had a urinary problem and had not passed urine for the last 12 hours and the bladder was filling up thus leaking urine due to the pressure. It was also disclosed that the patient had been severely beaten two months before coming to hospital for possession of an illegal fire arm.

That when the Doctor examined the patient, he was severely dehydrated, had features of shock e.g cold feet and fingers, his pulse was thin and thread and they were all features of shock. This indicated that he was not stable, his pulse rate was 120 and his respiratory rate was increased and was drowsy- semiunconscious. That the impression was hypovolemic that is low volume shock

secondary to dehydration. That the Doctors plan of action was to give him fluids to replace the lost volume, put a tube to contain urine in the bladder. That his blood pressure was low meaning that he did not have enough blood pressure he was in shock. That Dr. Chebet ordered a blood work up such as malaria test, infection etc. but there were no results on that.

That on 16th January 2009, the patient was re assorted and he had vomited almost quarter liter of blood, was restless and the doctor thought that he had an upper Gastro intestine tract bleeding but he could not establish the cause. That tract bleeding could not establish the cause. That he was bleeding from the stomach and the upper part of the digestive system and mouth. That the Doctor offered anti-acids and referred the patient to Mbale hospital for further management on 16th January 2009.

That generally, the cause of urinary retention ranges. That for babies it was genetic, in young adults between 18 to 40 could be caused by trauma such as accident where the pelvic is affected, a fall, kick on the stomach etc. That an injury occurs where energy is exerted.

That for those above 40 years, it could be a prostate problem, a cancer or a urinary tract infection. That dehydration, hyporvenl aneamia is caused by lack of drinking, loss of blood through bleeding, internal or concealed from stomach, ulcer etc. That in this case, the patient vomited blood, meaning that he bled in the stomach. That it was not documented that the patient had abrasions, cuts etc. because if he had them, the doctor would have documented them.

*The medical reportfrom Kumi Hospital was admitted with the Consent of RC as C3X2.*

**CW3, Dr. Rubanza Barnabas** testified that he was 43 years old. That he held a Bachelor's Degree on Medicine and Surgery of Mbarara University Science and

Technology 2000. That he was the Principal Medical Officer and Police Surgeon based in Mbale Hospital and Mbale Police Clinic Forensic department.

That as a professional, he gave medical evidence in Courts of law, investigate cause of death for people who die under unclear circumstances, examine victims of sexual assault, manage patients with different kinds of sicknesses and any other duties as assigned.

That he has practiced as a pathologist in forensic medicine for the last 16 years. That he worked in Nsambya Hospital from 2003- 20005 and again in 2008 to date. That he has on several occasions been assigned forensic work in Mbarara and Gulu Districts. That he did not have any identification to show that he was a doctor but his registration number was G1952.

He explained that forensic surgery involved surgical, examining victims of assault, defilement, rape and treating them where necessary. That Forensic pathology carrying out postmortems to establish causes of death when requested to do so.

He identified the medical document as PF 48 on which he was requested to perform a postmortem on the body of Okwi David. That it was dated 18th January 2008. That this request was made by detective constable Okirrot Emma from Bukedea Police Station under Reference number CRB/716/08.

That he examined the body and carried out an autopsy from Mbale Regional Hospital. That his body was identified to him by Okirya Ramathan, the brother of the deceased. That the deceased was 36 years old, fairly nourished, had no external injuries on his body. That he went ahead and opened the body and found blood in the peritoneal cavity (abdominal cavity) had some abnormal vessels the esophageal varicose had been raptured. That this had small cirrhotic. That the cause of death was over bleeding from raptured upper Gastro intestinal tract, which is normally caused by failure of the liver to perform its functions.

That the common cause was alcoholism or hepatitis B before the patient dies he goes into shock due to internal bleeding. That blood pressure can suddenly drop and if the blood accumulates in the abdomen, he commits most patients who suffer from gastro intestinal bleeding of which 90% can die.

That assault can also cause such injuries if the patient is assaulted with a blunt object, he or she can die within 24 hours. That in the case of Okwi, trauma was not involved.

That he signed the report on 18th January 2009 and certified it on 30th April 2013. That he stamped the document with the Uganda Police Stamp.

## *The postmortem report was admitted with the consent ofRC as C3X3.*

As I had earlier stated at the beginning of this decision, R's side did not present any defense witnesses, put up a defense or file submissions in defense of the matter. However, R's side cross examined C3 and her witnesses. The absence of the defense did not mean that C3 discharged their duty under Section 101(1) and 102 of the Evidence Act Cap 6.

Therefore, I shall now look at whether R's agents caused Okwi David's death.

Article 6(1) of the International Covenant on Civil and Political Rights 1966 provides that:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 4 of the African Charter of Human Rights Peoples' Rights 1981 also guarantees the right to life and provides that:

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

In addition, Article 22(1) of the Constitution of the Republic of Uganda 1995 is to the effect that

No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.

In the case of **EDSON OLUKA VS ATTORNEY GENERAL, UHRR 2012-2014 VOL 1, 49,** the Tribunal stated that for the complainant to sustain the case of the violation of the right to life, they had a duty to prove that the respondent's agents caused the death and that the same was unlawful.

Accordingly, all evidence adduced by C2 and her witnesses revealed that the victim Okwi David did not die as a result of the torture allegedly inflicted on him by the Police. The evidence adduced by C2 herself revealed that Okwi was brutally killed, that is his neck, rib and bone at the chest were broken. Cl and C3 and C4's evidence was to the effect that Cl, C3 and the victim were beaten randomly all over their bodies using sticks and kicks. Cl and C3 clearly stated that they and the victim were all beaten from Cl's home (the victim was brought to their home and beaten from there after which they were all taken to the Police Post. It was after two weeks that the victim became ill and he was taken to hospital. Scientific evidence adduced by the expert witness (CW2), Dr Opolot clearly revealed that the victim was admitted at Kumi Hospital on a diagnosis of upper gastro intestinal tract. He however noted that the admission sheet revealed that that the patient was assaulted two weeks before. Additionally, CW3 in C3X2 found that the victim had blood in his abdominal cavity and that the esophageal vericae had raptured. Thus the cause of death was over bleeding raptured upper gastro intestinal tract caused by liver failure. The witness, also revealed that assault could cause such injuries in case a victim was assaulted by a blunt object. He further revealed that in case of the victim, trauma was not involved.

*22*

Accordingly, from the evidence adduced above we cannot rule out that the victim was assaulted and this was two weeks after his released when he was also taken to Kumi Hospital. It was clearly revealed by both CW2 and CW3 that the victim had suffered upper Gastro intestinal tract/ overbreeding as a result of kidney failure. Incidental to these facts/evidence is that the victim and his cocomplainants were randomly beaten using sticks and kicks. The unfortunate part of this is that the parts of the body that the victim was beaten could not be identified. However, key in the evidence of CW3 was that assault could also cause kidney failure although he mentioned that for the victim's death, trauma was not involved.

Therefore, this leaves this Tribunal to answer the question as to what caused the death and or whether the victim's life was violated by State Agents. From the analysis of evidence, the victim may have been an assault that was occasioned on the victim by the Police during arrest and interrogation while at Cl's home. There is no how, kidney failure may have occurred without a trigger.

It would be a coincidence that the victim would be hospitalized after his arrest and alleged torture by Police Officers. Evidence adduced by CW1 clearly revealed that the victim was not sickly and that the Police contributed a bag of Posho and beans towards the victim's burial. C4, Cl and C2's evidence raised issues such as a broken neck, ribs and chest bone and that he was passing urine and his stomach kept swelling. These particulars were synonymous with the findings of CW2 and CW3. Although C2 was not an expert, I think things like passing urine and a swelling stomach did not need medical education except conducting an internal examination of the cause of the passage of urine and swollen stomach. Apparently, all these signs occurred after the victim got in contact with the Police/ after he was beaten by the Police. The only presumption held by this Tribunal is that the victim died as a result of torture.

As I had earlier noted, R's side did not adduce any evidence to controvert C2's evidence. The latter's evidence was obvious. The Police Officers demonstrated a high level of irresponsibility regarding the lives of the Cs and the victim or their beneficiaries contrary to the objectives of their mandate. On that note, I find that the victim's right to life was violated by State agents contrary to Article 22(1) of the Constitution of Uganda.

Therefore, I resolve the issue in have considering in the affirmative.

### **Issue 3. Whether R (Attorney General) is liable for the violations.**

As I have already indicated above, I have concluded that Cl, C3, C4's right of freedom from torture or cruel, inhuman or degrading treatment or punishment and Okwi David's right to life was violated by State Agents which they and C2 proved on a balance of probabilities. The violations were committed while the Police officers were carrying out their official duties enshrined under the Constitution and Police Act Cap 303. I also mentioned that R never adduced any evidence to prove the contrary, so I shall apply the principle on vicarious liability laid down in the case of **IWINA VS ARUA TOWN COUNCIL, (1997) HCB 28,** in which court held that:

> Once it is proved that the servant was an employee of the master, there is a presumption that he was in the course of employment. The burden then lies on the master to prove the contrary.

Accordingly, I shall also consider Article 119 (4) (c) ofthe Constitution of Uganda, places a duty upon the Attorney General to represent the Government in courts of law or any other legal proceedings to which the Government is a party. The Attorney General was from the beginning of hearing of this complaint defending the same and he should be held vicariously liable for the violation of Cl, C3, C4 and Okwi David's rights as I have already established under issue 1 and 2 above.

Accordingly, the Cs claim in this regard also succeeds.

### **Issue 4. Whether Cs have a remedy.**

Article 53(2) (b ) and( c) of the Constitution of the Republic of Uganda places a duty upon the Uganda Human Rights Commission to order payment of compensation or any other legal remedy or redress if it is satisfied that there has been an infringement on the human right or freedom of any person.

Since I have already established and ruled that the aforementioned State agents violated the Cl, C3and C4 right of freedom from torture or cruel, inhuman or degrading treatment or punishment and Okwi David's right to life, then the Cs and the victim's estate are entitled to compensation.

I am fully cognizant of the underlying principle in awarding compensation, which is to restore the victims to the position that they were in before being victimized. The compensation to the Cs should therefore be adequate, effective and prompt.

I also take into account the case of **MATIYA BYABALEMA AND OTHERS VS. UGANDA TRANSPORT COMPANY, SCCA, 10193,** in which His Lordship Justice Odoki JSC stated that:

Courts out to assess the amount of damages taking into account the current value of the money in terms of what goods and services it can purchase out at present.

With all the foregoing in mind, let me now determine the compensation to be given to Cl, C3 and C4.

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

In assessing the quantum for the compensation for the violation of the aforementioned right, I am taking into account the following elements or facts:

- 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 of money 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, Cl, C3 and C4 in this matter was also assaulted almost in a manner similar to the treatment that the Complainant in the above cited precedent complaint experienced. However, the level of injury differed from C to C. Therefore, given the aforementioned five components and the case of **Matiya Byabalema and Others Vs Uganda Transport Company SCCA No 10/ 1993,** I award to Cl a sum of UGX 5,000,000= (Uganda Shillings five million only), to C2, a sum of UGX. 3,000,000/= (Uganda Shillings three million only) and to C4 a sum of UGX, 1,000,000/= (Uganda Shillings one 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.

b) Violation of the right to life.

In the case of **BINDIMEZE JOHN AND ATTORNEY GENERAL UHRR [2008- 2011],** the complainant reported the violation of his son (Byaruhanga's) right to life by UPDF soldiers and Local Defense Unit personnel to the Commission. It was established by the Tribunal that victim died after being kicked by a soldier or assault and while he was under the custody of security personnel. Byaruhanga was 26 years old. In awarding compensation that was due to the victim, the Tribunal considered the fact that's regarding working life expectancy of the deceased and the extent of the dependency of the bereaved family, widow, child and other dependents. Therefore, the Complainant was awarded UGX. 8,000,000/= as general damaged for the violation of the right to life.

In the instant case, C2's evidence clearly revealed that she was married to the victim by the time of his death and had children with him. Accordingly, the victim was just 36 years old. In Uganda, the working life expectancy is at 60 years old. However, C2 did not reveal what the victim did for a living but he had five children some of whom were in secondary school. This implies that the victim was a father, provider and husband. So in absence of proof of source of income, I shall only consider award of general damages to C2 or the estate of the victim. Thus I award to C2 a sum of UGX. 15,000,000/= (Uganda Shillings fifteen million only) as reasonable compensation for the violation of Okwi David's right to life.

#### **ORDERS:-**

- 1. The complaint is allowed wholly. - 2. R (Attorney General) is ordered to pay to the Cs, Eyamu Charles(Cl), Okion Micheal (C3), Nakirya Jennifer (C4), and Adeke Hellen (C2) a total sum of UGX , 24,000,000/= (Uganda Shillings twenty four million shillings only) broken down as follows: - a) For the violation of their right of freedom from torture or cruel, inhuman or degrading treatment or punishment

| Eyamu Charles CI, | 5,000,000= UGX | |----------------------------|-------------------| | Okion Micheal C3, | 3,000,000= UGX | | Jennifer Nakirya C4, | 1,000,000= UGX |

b) The violation of Okwi David's right to life

| TOTAL 24,000,000= | UGX | | |-----------------------|------------------------|--| | Helen Adeke C2, | 15,000,000= UGX | | | | | |

- 3. Each party shall bear their own costs. - 4. 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.

DATED AT **SOROTI** ON THIS ....^7... DAY OF 202£.

**SHIFRAH LUKWAGO PRESIDING COMMISSIONER**