Eyamu and Another v Attorney General (UHRC/SRT/77/2008) [2017] UGHRC 14 (7 December 2017)


## **THE REPUBLIC OF UGANDA**

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

**HOLDEN AT SOROTI**

#### **COMPLAINT NO: UHRC/SRT/77/2008**

**1. EYAMU SAM ]**

**:::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANTS**

**2. OKELLO MICHAEL]**

**And**

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

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

The Complainants Eyamu Sam (Cl) and Okello Michael (C2) allege that they were arrested on 23rd June, 2008 by the OC Kidongole Police Post and some other police men from the same Police Post, on allegations of illegal possession of a firearm. They allege that they were taken to Kidongole Police Post where they were subjected to serious beatings in quest for the gun. That it was after the intervention ofthe LC III Chairman, Ochom Martin that the police stopped beating them. They further allege that they were transferred to Bukedea Police Station where they were provided with treatment and detained for 5 days.

Counsel for the Respondent (RC), Ms. Topasho Juliet denied the allegations and opted to defend the matter.

The **issues** to be determined by the Tribunal are:

- 1. Whether the Cs' right of freedom from torture, or cruel, inhuman or degrading treatment or punishment was violated by State agents - 2. Whether the Cts' right to personal liberty was violated by State agents. - 3. Whether the Respondent (R) is liable for the violations. - 4. Whether Cs'are entitled to any remedy.

The law requires that the Complainant bears the burden to prove his case to the satisfaction of the tribunal. This is in accordance with **Section 101 (1) of the Evidence Act,** Cap. **6** Laws of Uganda, which provides that:

*"Whoever desires any court to give judgment as to any legal right or liability over the existence offacts which he or she asserts must prove that those facts exist. "*

And under **Section 102 of the same** (Supra) which also states that:

*"The burden ofproofin a suit or proceedings lies on the person who wouldfail ifno evidence at all were given on either side. "*

Resolution ofissues.

# **Issue 1: Whether the Cs' right of freedom from torture, or cruel, inhuman or degrading treatment or punishment was violated by State agents**

**Cl** testified that in June 2008, he was arrested by Police Officers from Kidongole Police Post and taken to the Kidongole Sub-county Headquarters on the allegation of illegal possession of a gun and when he denied being in possession of it, he was told to lie down, a heap of sticks was brought and two officers started beating him. That was beaten all over the body for about 30 minutes until he became unconscious.

That when he got back to his senses, the officers beat him again and he collapsed again. That he was beaten as the OC was watching and asking Cl to say something instead of dying. That at that point, Cl admitted that there was a gun at his home, and the officers than stopped beating him and took him inside the cell. That while in the cell, he heard the police officers asking C2 to give them the gun and they were beating him too, and he was also denying that he had any gun.

Cl further testified that C2 was also brought to the Sub-County Headquarters and detained in a cell near his.

That he was able to hear what was happening to C2 because the cell where he was near the cell that C2 was in. that at around 3.00a.m., Cl was taken to the cell where C2 was and the Chairman LC3, Ochom Martin came and was asked what should be done since one of the suspects had admitted having a gun while the other had denied. That LC3 Chairperson advised the officers to keep suspects in detention till morning.

That at about 3:30 a.m they were told to go and treat themselves, after which they went to Kidongole Health Centre II but the people they found there refused to treat them, and instead told them to get medical forms from police. That the policemen also refused to give it the forms to them. That they then went to Atutur Hospital.

Cl claimed that he sustained body bruises around the waist, back and the right leg and he showed the scars on the right leg to the Tribunal. He also claimed that the second last finger of his left arm was injured and it became lame (he also showed it to the Tribunal). That after one week from the time he was beaten, he started urinating blood for about 3 months. That some of the injuries were treated from Kidongole Health Centre II and others at Atutur Hospital. He claimed further that now has a problem with his waist and he cannot do heavy work because the pain comes when he does heavy work; and even that sitting for long hours makes it painful.

During cross-examination, Cl confirmed having been beaten at Kidongole Police Post, and that the beating made him confess having the gun. That the LC3 Chairperson came after the police officers had beaten him. He also confirmed that C2 was taken to Kidongole Sub -county Headquarters when he was detained in the cell and that he heard his voice since Cl was someone he knew. That they were only beaten at Kidongole Police Post by two police officers for about 30 minutes, he became unconscious and when he regained consciousness, they beat him again.

That he lost consciousness three times. H reiterated that currently he does nothing and it is his wives who dig. That he urinates blood only when he does heavy work. That he improved but when he resumes working, the same condition comes back.

C2 testified that he found Cl already at Kidongole Police Post and he was himself accused of hiding Cl's gun. That he got treatment from Kidongole Health Centre <sup>11</sup> and Atutur Hospital. That his face and left leg were swollen and he had bruises on the whole body. That he still feels a lot of pain in the body whenever he does much work.

C2 stated further That Cl had already been beaten and was in the cell by the time he himself was detained that Cl was very dirty and also had a lot of body injuries and he was very weak. That he saw stick marks all over his body.

During cross examination, C2 said that he had no gun. That he was beaten from Kidongole Police Post. That there was no one else apart from himself and the police officers since it was at night. That Eyam Sam was also beaten.

The Two Cs called **CW1, Asio Rose** who testified that when Cl was arrested and she followed him at Kidongole Sub-county Fleadquarters, she saw stains of blood on his clothes and sticks on the ground. That she was told that Cl had been taken to Bukedea CPS and she followed him there That she found him very weak because he had been beaten. That he was swollen all over the body, he was also bleeding from around the ribs and urinating blood, and his ring finger was broken.

That at Bukedea CPS, she also found C2 with Cl and they had both been beaten. That C2 had bruises around the waist, head and hands. That the police told Cl that if he had the gun, he should bring it he replied that he did not have any gun. That after being released, Cl and C2 continued with the treatment at Atutur Hospital. That Cl had not recovered fully because when he digs, he cannot sustain it for long and after two days he starts urinating blood.

When cross examined, CW1 confirmed that she never saw Cl and C2 being beaten but only saw the marks of beating on their bodies. That Cl sought medical treatment after being released but he was not admitted in hospital. That almost every month when Cl tries to do some work, he urinates blood. But when given treatment, he takes about 3 months without urinating blood. That His ring finger was broken and it had becaome lane. That there were wounds as well as bruises around the buttocks and the waist but there was only one wound on the head. She added that Cl does not support his family. That it is only her and the children who work yet before the incident, he used to work normally like any other strong man.

**CW2, Ochom Oputan Martin** the LCIII Chairperson, testified that when he was informed that C2 had been arrested, he went to the Sub-county Headquarters where there was a police post, and he found both Cl and C2 beaten. That he saw the bundles of sticks the policemen were using to beat them, and he told them to stop. That the Police man was Sgt. Erimu Alex, Osuret and Tom Charles who beat them and that he identified them because he had a torch. That knew the officers because he was the LC II Chairman by then. That Cl was beaten badly and he found him at Kidongole Subcounty Headquarters when he was unconscious and blood was coming out of his mouth. That is clothes were blood stained and torn. He could not even walk and had to be carried to the motorcycle. That C2 was also beaten although not as bad as Cl. That both Bukedea of them had bruises and stick marks around their bodies. They were treated by a nurse while at CPS.

CW2 added that the O/C told him that they were arrested on allegations of being in possession of an illegal firearm, and that the team that carried out the arrest had come from CMI Headquarters, and had informed the district officials and finally the Sub-county officials that they had come to cany out the operation. That they claimed that they were a team from CMI. That even one ofthem known as Osuret had a pistol. That CW2 called the O/C Police Post known as Outa Dan aside and asked him why they had not involved the LCs since in all operations, they used to work together. That it was agreed that the suspect be given treatment and some nurse was therefore brought to treat them.

During cross-examination, CW2 confirmed that he was not present when the two Cs were being arrested. That he only followed them and found both Cl and C2 being beaten at the Sub-county Headquarters . That when he visited them, they had torture marks.

**CW3, the medical an expert witness Dr. Oluka Simon** identified the Medical Report for C2 and testified that C was examined on 17/08/2008. That on examination, he was found to have multiple abrasions on the thoracic area and the back. He added also had bruises on the left biceps and the dosarm, and a swelling on the right lateral maleolus. The Doctor classified the injury as harm, adding that the cause ofthe injury was assault using a blunt object like a stick or batoon. He added that C was given antibiotics, diazepam and anagestics to relieve the pain. That later on the patient developed cellulitis-swelling ofthe muscle and this could result from the injury.

CW3 clarified that the form had been signed by Mr. Omogin Francis, a Senior Clinical Officer whom he personally knew, and it had been certified by the Hospital Director, Malinga Fredrick. That was certified on 25/10/2011.

He also interpreted the medical document for Cl which had been filled on 12/08/2008 Fie said that Cl had a bruise and multiple swellings on the lower lip ofthe mouth, thorax and the back. He also had multiple swellings in the buttocks and They extended to the lower back. That also had a bruise in the right lateral maleolus. The injuries were classified as harm and caused by a blunt object. He added that the medical form was signed by Mr. Omogin Charles, Senior Clinical Officer whom he personally knew. That Cl was given antibiotics and analgesics on the 7th July 2008, and this was treatment for soft tissue injuries. That they planned to do an x-ray but he did not see an x-ray report. That the document was certified by Malinga Fredrick, the Hospital Director.

The medical forms were admitted with the consent ofC R and marked as both Complainants'

The first and second exhibits ofthe two Cs (Cs XI and Cs X2).

During cross-examination, Dr. Oluka Simon confirmed that he was not the one who examined the complainants but that the medical form indicated the cause of injury as a blunt object. He further said that soft tissue injury from the documents specifically for C2 could have a lasting injury because he developed cellulitis. That however, for Cl, Sam according to the report, there was no similar effect did not call ant defence witnesses only to filed a written submission in rebuttal to the Complainant's allegations.

The two Cs also to a significant extent testified as each other's eye witness regarding the torture and injuries they saw affecting each other and the duration oftheir detention in Police custody.

In her submissions, RC stated that the evidence adduced by Cl and C2 did not show that they were tortured and specifically, that the medical officer who examined the complainants did not classify the type of injuries they suffered, and no X-ray was done on them.

RC's submissions are wrong since the aforementioned two exhibits which were admitted with the consent of RC both classified the injuries on the two Complainants as harm. Secondly, not every torture acts must be proved by an X-ray.

RC further submitted that the Complainants' witnesses did not witness the claimed beatings on the Complainants therefore, the Complainants had failed to prove torture.

In this regard, I must recall that CW1 stated that when she followed Cl after his arrest and found him at Kadongole Police Post, she saw sticks and stains of blood on the floor and she was told that Cl had been taken to Bukedea Police Station where she found both Cl and C2 weak and with marks showing they had been beaten. Although she did not witness the beating, she nevertheless personally and directly saw the state in which the two Complainants were in while at Bukedea Police Station.

Secondly, **CW2** stated that when he went to the Sub-county Headquarters after knowing that C2 had been arrested, he found the two Cs being beaten. He also saw the bundle of sticks the policemen were using to beat them, and he told them to stop the beating. He even identified the officers who beating the two Cs.

Both CW1 and CW2 testified as eye- witnesses whose evidence is therefore credible.

The right to freedom from torture is protected by national, regional and international human right instruments.

The **Universal Declaration of Human Rights (UDHR), 1948** under Article <sup>5</sup> provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, **Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1996** absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

The **African Charter on Human and Peoples' Rights (ACHPR) 1981** under **Article 5** also reiterates the total prohibition of violation ofthe same aforementioned right.

The **Constitution of the Republic of Uganda 1995** under **Article 24** absolutely prohibits subjection of anyone to any form of torture or cruel, inhuman and degrading treatment or punishment. This right is provided for as a non derrogable right under **Article 44.**

The definition oftorture is provided by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, which Convention Uganda ratified.

**Article <sup>1</sup>** thereofstates that:

*"... torture means any 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 is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence ofa public official or 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 afore-cited definition in has been applied in Uganda in the matter of **Fred Tumuramye Vs Gerald Bwete and Others UHRC NO 264/1999,** where former Commissioner Aliro Omara spelt out the elements oftorture to include;

- a) An act by which severe pain or suffering whether physical or mental is inflicted on a person. - a) The act is inflicted intentionally and for a purpose such as obtaining information, or a confession, punishment, intimidation, coercion or for any reason based on discrimination.

b) The act is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

These ingredient oftorture shall guide resolution ofthe issues in this matter.

Cl testified that when he was arrested by Police Officers from Kidongole, he was asked for the gun they claimed he possessed and when he denied having it, he was beaten all over the body for about 30 minutes until he became unconscious and when he got back to his senses, the officers beat him further and he collapsed again. He sustained body bruises around the waist, back and the right leg and the second last finger of the left arm was injured and it became lame. That after one week from the time he was beaten, he started urinating blood and this continued for about 3 months. That he now has a problem with his waist and he cannot do heavy work because the pain comes when he does some work, and even sitting for long hours makes it painful.

Cl'<sup>s</sup> testimony shows that he suffered severe pain and suffering, both physical and mental not only at the time he was beaten but also, the condition had continued up to today since he cannot dig for long. It is intentionally inflicted on him. Cl'<sup>s</sup> claims are confirmed by CW3, the medical expert who noted that Cl'<sup>s</sup> injuries was classified as harm and that the cause of the injuries were assault using a blunt object like a stick or baton. CW1 also said that Cl cannot dig for long and if he does he urinates blood.

The adduced evidence had also clearly indicated that Cl was arrested on the allegation of being in illegal possession of a gun and when he denied having it, he was beaten as asking C to admit the allegation instead of dying. That as soon as Cl admitted that there was a gun at his home the officers stopped beating him.

It is clear that Cl was beaten for the purpose of obtaining information from him and conceiving him to confess being in possession of it. When he denied having the gun, he was , punished and when he admitted, the punishment and coercion stopped. The adduced evidence has also shown that when C2 was arrested and taken to Kidongole Police Post, the Police Officers asked him for the gun he was hiding for Cl, and when he said he did not have it, they started beating him. His face and left leg became swollen and he had bruises on the whole body and this is why he went to Atutur Hospiatl for treatment. He still feels a lot of pain in the body when he does much work. The above claims were confirmed by CW3 the medical expert witness who also classified the injuries as harm.

From the above, it is clear that C2 suffered severe pain and suffering, both physical and mental, and this is evidenced from the injuries he sustained and the classification made of the injuries. The beating was intentionally inflicted on him so as to confess that he was hiding Cl'<sup>s</sup> gun and when he denied, he was punished for that.

There is therefore no doubt that the aforementioned facts were inflicted on both Cl and C2 by Police Officers of Kadongole Police Post and since the OC was present, he supported and acquiescenced his subordinate's' actions. The said Police Officers are public officials and they were both individually and severally acting in their official capacity.

In **TOMASI VS FRANCE [1992] 15 EHRR 25,** the Appellant was arrested on suspicion of terrorism. Medical evidence was adduced that he had received large blows on his body. The Government did not provide an alternative explanation on how the blows had been occasioned on the Appellant. The European Court of Human Rights therefore held that, <sup>4</sup>'in the absence of any explanation by Government for the marks, which marks he did not have at the time of his arrest, it would be presumed as acts oftorture by the respondents agents for which the respondents would be held vicariously liable."

In the instant matter, I have therefore reached the conclusion that the agents of State both individually and severally beat and injured the two Cs while in their custody, and that they also failed to give an explanation to that effect.

Wherefore guided by the above principle, I find on the balance of probabilities that the said State agents violated the right of the two Cs to protection from torture, cruel, inhuman and degrading treatment or punishment and the Complainant's claim in the instant complaint is upheld.

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

**Cl** testified that after he had been arrested on one Sunday in June 2008 at 2.00 a.m. by six policemen of Kidongole Sub-county Police Post he was taken to the Sub-county Headquarters, about <sup>1</sup> *Vi* kms away and detained there for one night.

That from there he was taken to Bukedea Police Station where he was detained for four days and then released.

**C2** also testified that after his arrest in June 2008, he was taken to Kidongole Sub-county. Where he was detained for two days before he was taken to Bukedea Police Station on Sunday and released on Friday. The evidence adduced by C <sup>1</sup> and C2 also correlated by the two eye witnesses has clearly shown that the two Cs were released for detention after five days of detention days from Sundays night up to Friday.

The certified lock register from Bukedea Police Station, admitted with the consent of RC and marked CXI indicates that Cl and C2 were booked in on Monday 23rd June 2008 for an offence of being in possession of a fire arm and released on Friday 27th June 2008. This amounts to five days of detention, as claimed by the two Cs.

RC submitted that a person arrested should be brought to court within 48 hours from the time of arrest excluding Sundays and Public Holidays.

However, Article 23 ofthe Constitution does not exclude any day when considering the 48 hours. Legal detention.

My conclusion therefore is that the evidence in this decision points to the violation ofthe right of the two Cs to personal liberty which is protected by Article 23 of the 1995 Constitution of the Republic of Uganda. The same right is also protected by International and Regional Human Rights Instruments to which Uganda is signatory such as: the International Covenant on Civil and Political

Rights (ICCPR) 1976 whose Article 9 prohibits arbitrary arrest and detention, or any limitation on individuals' right to personal liberty, unless it is done on grounds and procedures established by law; In addition, Article 6 of the African Charter on Human and Peoples' Rights (ACHPR) 1997, which under Article 6 provides that "every individual has the right to liberty and to security of person; and reiterates that this right can only be constrained "for reasons and conditions previously laid down by law".

Article 23(1) (c) of the Constitution, however, allows limitation to the right to personal liberty in execution of a court order or upon reasonable suspicion that a person has committed a criminal offence. This is reiterated under Section 23(1) of the Police Act Cap 303 as amended, which provides that a police officer may, without a court order or warrant, arrest a person if he has reasonable cause to suspect that the person has committed or is about to commit an arrestable offence. The key words here are "reasonable cause" which also includes "probable cause"

**Section 21(a)(i) of the Police Act Cap 303 as amended,** gives powers, to Police Officers to arrest and detain all persons they are legally authorized to apprehend and for whose apprehension sufficient grounds exist.

Reasonable and probable cause was defined by Lady Justice Mpagi Bhigeine in **Steven Semugona Vs Madix Mafuge & 5 Others [1994] 11 KALR 108 as:**

"a honest belief in the guilt of the accused based upon full Conviction founded upon reasonable grounds for the existence of a state of circumstances which assuming them to be true would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person was probably guilty ofthe crime implied."

The two complainants testified that they were arrested on allegations of being in possession of a firear. Such an act is criminal in nature and therefore, the police officers were right to arrest them since there was a reasonable suspicion that they had committed a criminal offence

However, even if C's arrest was to be justifiable, it is already noted that **Article 23(4) (b)** of the Constitution provides among others, that a person arrested and 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 48 hours from the time of his or her arrest.

While the two Cs stated that they were arrested on Sunday 23rd June, 2008 and released on Friday 27th June, 2008, the afore-cited Police lock-up registered while indicating Friday 27th June, 2008 as the date for the release, it recorded Monday 23rd June, 2008 as the date the two Cs were booked into Police detention .

In the case of **Uganda Vs Abdallah Nasur (1977) HCB,** it was held that in assessing evidence of a witness, reliance placed on its consistency is a relevant consideration. Where grave inconsistency may have no adverse effects on the testimony it may be admissible unless it points to deliberate untruthfulness.

The inconsistency between the testimonies of Cl and C2 on one hand and the Police Loack up register on the other regarding the number of days the two Cs were detained at Kidongole Police, is a minor inconsistency not to affect the evidence adduced by the Cs in any fetal manner.

It is clear to me that the two C spent a night at Kidongole Police Post before they were transferred to Bukedea Police Station. The lock up register obviously only indicated the days they were at Bukedea Police Station. Therefore, the extra day they were at Kidongole Police Post is also noted basing on the testimonies adduced by the two Cs and as corroborated by the two eye witnesses?

<sup>I</sup> therefore find on the balance of probabilities that Stateagents violated the right of the two Cs to personal liberty for a period of four days of illegal detention since they were in detention for a total ofsix days.

## **Issue No. 3: Whether the Respondent (Attorney General) is liable for the violations**

According to Article **119(4) (C) of the Constitution and Section.10 of the Government Proceedings Act,** the role of the Attorney General is to represent Government in any civil proceedings to which government is a party.

In **Muwonge V Attorney General (1967) E. A 17,** Justine Newbold P. stated thus:

*The law is that even if <sup>a</sup> servant is acting deliberately, wrongfully, negligently or criminally, even ifhe is actingfor his own benefit, nevertheless ifwhat he did was in manner ofcarrying out what he was employed to carry out, then his acts are acts for which the master is to be held liable "*

*Furthermore, in the case ofJones V Tower Boots Co. Ltd (1997)2 ALL ER 406, the court held that "an act is within the course ofemployment ifit is either:- (1) a wrongful act authorized by the employer or (2) a wrongful and unauthorized mode of doing some act authorized by the employer".*

**<sup>I</sup>** have noted that RC submitted that the Police Officers were not in the course of their duty since the two Cs did not avail evidence to prove the same.

However, it has now been established that the officers at Kidongole Police Post did torture the two Cs and Police officers at Bukedea Police Station did detain illegally the two Cs for four days; and that in both cases the Police Officers individually and severally acted as they did while they were carrying out security duties in the service ofthe State.

I therefore find it fitting to hold the Attorney General vicariously liable for the violation of the two rights ofthe two Cs as already proved.

#### **Issue No. 4: Whether the Ctwo CS are entitled to any remedies**

Article 50 (1) ofthe Constitution of Uganda vests into the Human Rights Commission the power to order for effective remedies in favour of victims whose fundamental rights granted to them by the same Constitution have been violated. In addition, Article 53 (2) of the Constitution empowers the Uganda Human Rights Commission to order payment of compensation or any remedy or redress, once satisfied that there has been an infringement on anybody's human right or freedom.

**In the complainant of Christopher Ssajabi Nsereko Vs Attorney General UHRC No.112/99 former** Commissioner F. Mariam Wangadya observed that indeed human rights and freedoms would serve no purpose iftheir violations did not attract redress to the victims.

Furthermore, I taken into account the case of **Matiya Byabalema and others Vs Uganda Transport Company SCCA No 10 of 1993** where it was stated that "courts (in this case, the tribunal) ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present".

Remedy for the two Cs is therefore decided against the above-cited legal powers and principles.

#### **Violation of the right to personal liberty**

I have already ruled that the right of the two Cs to personal liberty was illegally violated for a duration of four days out of the six days they spent in detention. Therefore, the legal context within which I am considering this particular issue for resolution includes among others, Article 23 (7) of the Constitution, which provides that any person unlawfully arrested, restricted or detained by any other person or authority shall be entitled to compensation from that other person or authority whether it is the State or an agency of the State or another person or authority.

Am also considering the fact that the two Cs were never charged in court for the alleged offence they were arrested.

In **Abdu Maka v Jinja District Council (JJ HCCS No. 60/2000),** Justice Yorokamu Bamwine, J awarded the plaintiff Ug. Shs 2,000,000 for illegal detention ofseven days at a police station.

I am therefore awarding to each Complainant a sum of Shs.l, 500,000/= (Shillings one million five hundred thousand only) as general damages for the violation of his right to personal liberty.

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

In respect to this right, the two Cs have also proved to the satisfaction of the Tribunal that on balance, there is a high probability that their right of freedom from torture, cruel and inhuman treatment or punishment was violated by the State agents. The two Cs are therefore also entitled to recover compensation from the Respondent by way of damages.

In assessing damages in this matter I will take into consideration the fact that freedom from torture is a non-derogable freedom, and therefore its violation is always a deliberate abuse which must be equally considered to be a deliberate breach of a fundamental right guaranteed absolutely by the Constitution. In this complaint there is no doubt that the servants of the State chose to deliberately torture the two Cs as a method ofinvestigation.

Additionally, the nature of the torture act and the extent the of the injuries sustained by the victims as a consequence of the torture, were so severe that for Cl, he claimed that he was still suffering since he could not dig for a long time and if he did, he would urinate blood. However, I noted that the doctor who examined him on 14th August 2008, two months after the incident, never indicated in his findings this level of gravity of Cl's suffering, Cl would have raised the complaint to the doctor if he really was suffering to the extent, since he claimed to have had the problem for three months.

I also noted that the doctor classified the injuries of both Cs as harm.

In *Kisembo Milton Vs Attorney General FP/005/2004,* the complainant was beaten all over the body, pushed against the wall and punched heavily by policemen, and the Presiding Commissioner C. K. Karusoke awarded him UGX 3,000,000/= (Three million Uganda shillings) as compensation for the violation of his right to protection from torture, cruel, inhuman and degrading acts.

I take into consideration the evidence showing that Cl sustained body bruises around the waist, back and the right leg; and that the second last finger of his left arm was injured and it became lame. He also lost consciousness while being beaten and when he regained it, he was beaten even further. All this has negatively impacted his productivity.

For C2, was beaten and his face and left leg were swollen and he also had bruises on the whole body. He still he felt a lot of pain in the body at the time he testified.

I accordingly award Cl **UGX 10,000,000/= (Ten million Uganda shillings)** and **C2 6,000,000/= (six million Uganda Sillings)** as adequate compensation for the violation of their right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

I therefore order as follows:

#### **ORDER**

- 1. The complaint is allowed. - 2. The Respondent (Attorney General) is ordered to pay to the first Complainant, Eyamu Sam a total sum of Ug. Shs.l 1,500,000/= (Uganda shillings eleven million, five hundred thousand only) for the violation of his two rights by State agents, broken down as follows: - a) Ug. Shs. 10,000,000= (Uganda shillings ten million only) for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - b) Ug. Shs. 1,500,000= (Uganda shillings one million five hundred thousand only) for the violation of his right to personal liberty

- 3. The Respondent (Attorney General) is ordered to pay to the second Complainant Okello Michael a total sum of Ug. Shs.7, 500,000/= (Uganda shillings seven million five hundred thousand only) for the violation of his two rights by State agents, broken down as follows: - a) Ug. Shs. 6,000,000= (Uganda Shillings six million shillings only) for violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - b ) Ug. Shs. 1,500,000= (Uganda shillings one million five hundred thousand only) for violation of his right to personal liberty. - 4. Interest at the rate of 10% per annum to be paid on the total sum of Ug. 19,000,000/= (Uganda shillings nineteen million only) calculated from the date ofthis decision until payment in full. - 5. Each party to bear their own costs. - 6. Either party may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision if not satisfied with the decision ofthis Tribunal.

So it is ordered.

**DATED AT SOROTI ON THIS DAY OF 2017**