Eyangu v Attorney General (UHRC/SRT/231/2007) [2017] UGHRC 15 (7 December 2017)

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/231/2007

EYANGU RAPHAEL::::::::::::::::::::::::::::::::::::

#### **AND**

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

## (BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA)

#### **DECISION**

The Complainant (C) Eyangu Raphael alleged that on 31st October 2007, the Officer in Charge (OC) of Kamuda Police Post with seven other Police Officers attached to the same Police Post went to his home, arrested and subjected him to severe beatings on the back and thereafter detained him at Kamuda Police Post for three days over unclear reasons. He'sought compensation for the violation of his right.

Counsel for the Respondent (RC), Ms. Topasho Juliet denied the allegation.

The issues to be determined by the tribunal are:

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| $\frac{\mathbb{P}^*}{\mathbb{C}^1}.$ | Whether the C's right of freedom from torture or cruel, inhuman or degrading treatment | | |--------------------------------------|----------------------------------------------------------------------------------------|-------------------------------------------------| | $W$ | or punishment was violated by State agents. | ICNOBAL T | | $\mathrm{d} \mathcal{L}_\mathrm{c}$ | | $\mathbf{L}^{-2s} \mathbf{SUE}^{-\frac{1}{2s}}$ | | $\mathcal{C}(\cdot)$ | | | | $C_{\alpha}$ | | | | 1.1 | | | | | | |

- 2. Whether R is liable for the violation. - , 3. Whether C is entitled to any remedies.

During the hearing of this matter, R did not present any defence witnesses but filed a written submission. Nonetheless, this did not take away C's duty to prove his case against R to the satisfaction of the Tribunal on a balance of probabilities. This is in line with **Sections 101(1) and 102 Evidence Act Cap 6, Laws of Uganda** which provide that "Whoever desires any court to give judgment as to any legal right or liability dependant on the existence offacts which he or she asserts must prove that the facts exist;" and 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."

## **Resolution ofissues.**

**Iksue 1: Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by state agents. " 1 ''**

ar-Article 24 ofthe Constitution ofUganda provides that:

7 *"No person shall be subjected to any form oftorture or cruel, inhuman or degrading ',l - treatment orpunishment. "*

^Article 44(a) ofthe Constitution further provides that:

L? *"Notwithstanding anything in this Constitution, there shall be no derogation\* enjoyment of the right to freedom from torture and cruel, inhuman or degrading treatment or punishment. " r*i \*

The concept of "torture" has not been defined under the Constitution or any regional human rights instruments. However, a definition is offered under the International Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), 1984 wherein Article 1 defines torture to mean:

*f "Any act by which severe pain or suffering whether physical or mental is interifidhaity inflicted on a person for such purposes as obtaining from him or a third'person ,<x information or a confession punishing himfor an act he or a third person has committed*

- I' 2 - L ... . I1- 4

*or suspected ofhaving committed or intimidating or coercing him or a third person forany reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation ofor with (he consent or acquiescence ofa public official or any otherperson acting in an official capacity. "*

Article 1 of UNCAT was applied by Commissioner JM Aliro Omara in **Fred Tumuramye . Vs. Gerald Bwete and Others UHRC No. 264/1999** in which he stated that the major contours of torture included:

- i. That the actions caused the complainant severe pain or suffering, whether physical or mental.' - ii. The purpose of the above actions was to obtain information or confession or punishment, intimidation or for any reason based on discrimination, . - A.- ' ... s. . iii. The actions were inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity.

C testified that on the 31st October 2007, as he was at their trading center in Okulai Village, Aminit Parish in Kamuda Sub County drinking local brew, he met a one Edopu who started harassing him, and later Edopu's father Ederu also joined them. That he decided to go back home at about 6.00 p.m. That while at home, he heard a knock at his door. That'th^ 00 of Kamuda Police Post, one Mabele opened the door and entered the house and then boxed him on the eye before pushing him out ofthe house. That when he was pushed out, the police officers who had accompanied the OC started beating him, tied him and continued beating him as they took him to Kamuda Police Post which was about 3kms from his home. That they beat him for about an hour. That all the police officers beat him with the OC using a wire lock while therest were using sticks to beat him on the abdomen, ribs, and the back. That he sustained injuries oil tile back and still felt pain internally. That he was detained for three days without any treatment but later on he received treatment from Soroti Regional Referral Hospital after lodging his c'dmplaint with the Commission. The photograph showing C's injuries was admitted as the C's Ysl identification document (C1D1). ' : ' j

Vi' .

During cross - examination by RC, C confirmed being boxed by the OC when he entered his house before pushing him out, and that as a result, he sustained injuries on the back and still had scars. That he was also beaten by all the police officers when he was outside the house and on the way to the Police Post. It was 8.00 p.m but he was able to see the police officers because they had torches and that he knew some of them like OC Mabele, Ejemu and Ejoku who were wearing maroon uniform, and Osenga who was dressed in civilian clothes. That he was not informed of the reason for the arrest. That his wife, Ayedo Meld, his child and Aunt Jane saw him being arrested and beaten.

He further clarified that upon his release, he was not in good shape and his mother took him to a health center for treatment on that very day when he was released. That when he went to Soroti tp lodge a complaint, he also went to Soroti Hospital for further treatment.

C called his wife, Ayedo **Imelda** as his first witness (CW1). She testified that C was arrested in the'month and the year she could not remember but it was at around 8.00 p.m. That he was arrested from home by a police officer attached to Kamuda Police Post, a one Eyoku the security informer and Ederu, a peasant in the village. That the police officer was in police uniform U-- • •; pdiaki), and C was taken to Kamuda Police Post. That C was seriously beaten after his arrest and she witnessed it. That he was beaten using a wire lock especially on his back,?by a policeman. He was beaten by a policeman called Mubiru while still at home.

CW1 added that at the time of his arrest, C was inside the house eating food and that the Police . Qfficers entered into the house and started beating him. That he was beaten for almost one hour and he sustained wounds on his back and as a result he bled excessively. That as they were beating him, they were telling him that they were taking him to the Sub-county Headquarters Where their police post was located. That she was not informed ofthe reason for C's arrest; ; i'-'f

She also stated that C was taken to Kamuda Police Post but she did not follow them immediately tibcause it was at night. That she went to the Police Post the next day in the morning and she was allowed to see C who was feeling a lot of pain and was limping. That she asked the police officers that since they had beaten her husband, they should take him to the hospital for treatment l?{ut they did not do so. That at around 6.00 p.m, Raphael was granted a police bond but nobody

be •

stood surety for him. That on the next day she took C to a clinic in Arapai and he was given treatment.

During cross - examination of CW1, the witness confirmed that C was arrest by about seven police officers from the Police Post at the Sub-county headquarters and that she knew only one of them called Mabere. That she could not see properly since it was getting dark but some of those she identified were wearing uniform maroon in colour. That she was not told why C was arrested. That C was beaten and they started beating him from home. That she knew Aguti Rebecca (CW 2) but that she was not around at the time of C's arrest. That CW2's home is not far from her own home and one could hear what was taking place at their home.

She added that C was taken to the Sub County Headquarters but she did not go with him. That she went to the Sub-county Headquarters the next morning and found C not wearing any clothes. That he spent two days in detention and got treatment from Kamuda Healthy Centre III. but he \yas not admitted, they just treated him and he went back home. That C's brother took him.to the Health Centre and h that C also used to go to some clinics. That he still complained of abdorpinal pain, and he does no work, and was the one who was supporting the family although C tries to dig but not so much.

C's second witness, **Aguti Rebecca (CW2)** testified that on a date and month she could not • . • i remember in 2007 at 8.00 p.m, seven men went to their place while she was sweeping her house. jhat one of the men called Ejebu, a police officer at the Sub County Headquarters had a gun and was wearing a maroon uniform and he entered inside the house. That he came out and went to C's home and shortly thereafter, she started hearing noise from C's house. .. 'h; '•«

&he added that hey arrested C and when they reached her home, the men were beating C with \* J .• 8he ofthem using a wire lock, and blood was oozing from his head. That the other officers were beating C with sticks all over his body and he was crying. That she next saw C after .he had returned from the Sub-county Headquarters but she could not remember for how long he was detained there, but may be it was 2 to 3 days. That when C came back, he had marks oftorture on his body and some parts of his body were swollen.

During cross - examination, CW2 clarified that C was her brother, and that she could not recall the name of the O/C but remembered some police men like Epiku, Ejemu and Eoku aas welfas the O/C, and Ederu who had complained against C.

That it was between 7:00-8:00 p.m., when he went to C's home and they were on bicycles and some of them were in uniforms. That she heard C crying and he sounded like someone was iC beating him. That she did not see C being beaten. That when he came back home he was still bleeding from the head and there were marks of beating all over his body. That he also had swellings on the head, ribs and the back. That C does not do anything and his wife takes care of him.

fe's other witness, Opero Alfred (CW3) testified that he had worked in Soroti Regional Referral Hospital since 2014. He identified the medical form No.260/07of Eyangu Raphael, who had received treatment on 5/11/2007 as an outpatient. He interpreted the form saying that C had a complaint of assault where he sustained multiple severe soft tissue injuries as well as abrasions (open wounds) on the back. That the person who examined him graded the injury as grade 1 body harm, after which C was put on diclofenac injections and tablets as well as daily injection of PPF for five days.

Jfje added that the medical form had no name of the examining doctor but had only a signature y/hich he could not identify since he did not work with that particular doctor. He howevejf clarified that the form had the stamp of Soroti Regional Referral Hospital had been and was certified by the Hospital Director. That according to the evidence before him, the injuries could hilly heal.

jfhe certified medical form from Soroti Regional Referral Hospital was admitted with the Consent ofRC as C's first exhibit (CXI).

During cross-examination ofthe expert witness by RC Eric Lumbe, CW3 confirmed that he did Kpt know the person who had done the examination because it was done in 2007 before hejdinPd Soroti Regional Referral Hospital. That he however was sure it was done at Soroti Regional Referral Hospital. That basing on the form, the soft tissue injury were not severe. That the patient had open wounds but was not admitted and there was no further treatment apart from jjvhat was indicated on the form.

RC filed a written submission in defence, in which he argued that the medical report adduced did not classify the injury and did not show which medical officer examined C and so, it was not authentic and therefore, he prayed that the tribunal does not rely on it since it was a forgery. Secondly, that the witnesses did not see any person beat C.

I do not agree with RC's submission regarding the authenticity of the Medical Report although it is true that the person who signed it at the time of examination did not write his full names on the form.

However, the Medical Report had been signed by the Medical Superintendent who examined $\hat{C}$ who also stamped it with the official stamp of Soroti Regional Referral Hospital. More important however is the fact that on 25th March 2013, the Medical Form was sent by the Commission to Soroti Regional Referral Hospital where it was duly certified by the Director of the same hospital confirming its authenticity against their records. Further, the expert witness who interpreted the form was also sent from the same hospital which gave him authority to interpret it on behalf of the hospital. The expert witness was an experienced medical officer and he also signed and confirmed the report after he had interpreted it. Moreover, the form was admitted into C's ੇ ਸ਼ਾਲ 🔆 evidence with the full consent of RC.

macra of $\{1,1\}$ I was therefore satisfied that the medical form could not have been forged by C or anybody else and I also was re assured by RC's consent to its admission in C's evidence.

I therefore accept the Medical form as being authentic.

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$\mathrm{It}:$ $\mathcal{V}$ . fi.,

also do not agree with RC's other submission about C's first and second witnesses. I find that CW1 was a direct witness since her husband (C), was arrested and beaten in her presence. CW2 also saw C arrested and being taken past their home and she personally heard C shouting like he $\alpha$ was being beaten. $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$

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It is therefore clear that C was arrested from his home by Police Officers attached to Kamuda Police Post and that upon his arrest, he was beaten by the OC and the other police officers. And that C's back, ribs and abdomen sustained bodily injuries as a result of this assault. Iam therefore convinced that the police officers intentionally beat C and caused him severe physical and psychological pain and suffering... $\mathbb{C}^{\mathcal{M}}$ From C's testimony, it is also clear that he was beaten to punish him for the argument he had had with Edopu and Ederu at the trading center and Ederu was among the people who went to arrest him.

Lastly, the aforementioned acts were inflicted by the Police officers and with the consent of their superior the OC. These security men were public officials and they were acting in their official capacity.

Accordingly, I find that the C 's right to freedom from torture or cruel, inhuman or degrading $\frac{1}{2}$ treatment was violated by the state agents. C's claim in this respect therefore succeeds.

#### Issue 2: Whether R (Attorney General) is liable.

Article 119(4) of the Constitution of the Republic of Uganda mandates the Attorney General to represent government in all legal proceedings to which government is a party. Also, according to Section 10 of the Government Proceedings Act, all civil action against the government are expected to be instituted against the Attorney General. $56^{\circ}, 25^{\circ}$

In Lister Vs. Hesley Hall Ltd (2001) UKHL 22, the House of Lords observed that the principle that the master is liable for the acts of a servant whether the act is authorized or an unauthorized act done in a wrongful manner.

Since it has been proved that the Police officers attached to Kamuda Police Post violated C's right to freedom from torture while they were executing of their official duty to enforce law and $\cdots \cdot$ order, I therefore find R vicariously liable for their actions. $\cdots 3:$

1011. H. C

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$\mathbb{R}^4 \mathbb{H} \mathbb{C}^*$

#### Issue 3: Whether C is entitled to any remedy

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OOR

The Uganda Human Rights Commission is mandated under Article 53(2) of the Constitution to order payment of compensation or any other legal remedy or redress if satisfied that there has been an infringement of a human right or freedom.

Since C's claim in this matter has already succeeded, I therefore find that he is entitled to the remedy of compensation.

The underlying principle in giving compensation for violation of rights is to put the victims in the positions that they were was in before the violations arose. The compensation ordered should therefore be adequate, effective and paid promptly.

In **Isabirye Kiwule V Attorney General, Complaint UHRC/J/35/2003, UHRR [2003-2007]** former Commissioner J. M Aliro Omara laid down the following points to be considered when granting compensation for breach of a Complainant's freedom from torture or cruel, inhuman or degrading treatment or punishment as: . \* '•

a) The nature oftorture and injuries sustained by the Complainant and the impact on his life U-.v. ifany

b) The fact that this right is absolute under Article 44 ofthe Constitution. th-

c) Where possible, previous awards in cases or complaints of a similar nature.

Since C sustained injuries on the back and head; which affected his ability to work for a livelihood, I award him Ug. Shs. 8,000,000/= (Eight million Uganda Shillings) as compensation 'for- the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. . V

I: ' • '

J-therefore order as follows:

# **ORDER**

J-. ' -

r \* •

& 5 1. The complaint is allowed. " A'

2. The Respondent is ordered to pay to the Complainant, Eyangu Raphael the sum of **Ug. Shs. 8,000,000/= (Eight million Uganda Shillings)** as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

3. Interest at 10% per annum to be paid on the amount of Ug. Shs.8, 000,000/= (Uganda \ , Shillings Eight million) calculated from the date ofthis decision until payment in full.

4. Each party shall bear their own costs.

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

So it is ordered.

### **DR. KATEBALIRWE AMOOTI WA IRUMBA**

**PRESIDING COMMISSIONER**

2017.