Iga Moses & Kalule Francis v Attorney General (Complaint UHRC No. 133 & 115 of 2006) [2023] UGHRC 4 (25 May 2023)

Full Case Text

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# THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT KAMPALA

# CONSOLIDATED COMPLAINTS NO'S UHRC/133/2006 & **UHRC/115/2006**

$1ST$ COMPLAINANT **IGA MOSES** $\}$ **KALULE FRANCIS} ::::::::::::::::** $2ND$ COMPLAINANT $-$ AND $-$

**ATTORNEY GENERAL .................................... RESPONDENT**

# **CORAM:**

- 1. HON. MARIAM WANGADYA - 2. HON. COL (RTD) STEPHEN BASALIZA - 3. HON. OMARA APITTA LAMEX - 4. HON. SHIFRAH LUKWAGO

#### **DECISION**

#### **Brief Facts**

These complaints were lodged with the Commission by the complainants against the respondent alleging violation of their rights to personal liberty, and to freedom from torture, cruel, inhuman or degrading treatment or punishment. The 2 complaints were consolidated as they arose from the same facts.

The 1st Complainant - Iga Moses, alleged that on 21st July 2004 at around 6:30am he was arrested by Violent Crime Crack Unit (VCCU) operatives on allegations of theft of a motor vehicle. He was taken to Kireka VCCU headquarters where he was detained until 21st September 2004. That while in detention he was beaten all over the body and sustained serious injuries. He further alleged that he was later transferred to Kampala Central Police Station (CPS) where he was detained for 2 days. He was then produced before Buganda Road Chief Magistrate's Court. He was charged with theft of a motor vehicle and remanded to Luzira Government Prison. Two (2) days after being remanded to Luzira Prison, he was picked by VCCU operatives and taken to Makindye Military barracks where he appeared before the General Court Martial (GCM) and was charged with aggravated robbery and remanded to Luzira Prison again. That on 21st December 2005 he was acquitted by the GCM.

The 2nd Complainant, Kalule Francis, a brother in law to the 1st Complainant, alleged that on 16th July, 2004 upon being granted bail by Buganda Road Court, he was rearrested by armed VCCU operatives on allegations that he had jumped bail. When he tried to resist arrest, he was beaten to the extent of one of his fingers being cut. He further alleges that he was detained at VCCU headquarters for 38 days.

It was the complainants' contention that their detention beyond 48 hours, and beating them amounted to violation of their rights to personal liberty,

$\overline{2}$

freedom from torture or cruel, inhuman or degrading treatment or punishment and deprivation of property.

They hold the Attorney General vicariously liable. The Respondent through his representatives Ms. Bayiga Irene and Ms. Ejang Maureen denied the allegations.

#### The issues for determination were

- 1. Whether the complainants' rights to freedom from torture, cruel, inhuman or degrading treatment or punishment was violated by the respondent's agents - 2. Whether the complainants' rights to personal liberty was violated by the respondent's agents - 3. What remedies are available

These complaints were heard by former Commissioner Dr. Katebalirwe Amooti Wa Irumba. It is from his record of proceedings that we arrive at this decision.

The respondent's Counsel never called any defence witnesses nor filed written submissions to rebut the complainant's allegations. However, under sections 101, 102 and 103 of the Evidence Act Cap 6, the complainants bear the burden to prove the allegations against the Respondent on a balance of probabilities.

## **RESOLUTION OF ISSUES**

#### Whether the Complainants' rights to freedom from torture, cruel, 1. inhuman or degrading treatment or punishment was violated

Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) of 1948, defines torture as:

"An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession punishing him for an act he or a third person has committed or suspected of having committed or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity".

Article 24 of the Constitution of the Republic of Uganda provides that; 'No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.'

The right to freedom from torture is a non-derogable right under Article 44 (a) of the Constitution. See also *Ojangole Joseph and Attorney General* **UHRC/SRT/203/2005.**

Uganda is a signatory to numerous international and regional human rights treaties which prohibit torture. These include the African Charter on Human and Peoples' Rights (Article 5) and the International Covenant on Civil and Political Rights (Article 7).

# **CW1 Iga Moses, testified that:**

"On 21st July 2004 at around 6:30 am while at home sleeping, I heard some people surrounding my house and knocking on the door. Upon opening the door, four armed men entered and took positions in different rooms in the house. I later established that the men were policemen attached to Rapid Response Unit (RRU). The men put me at gun point and ordered me to sit down while beating me with a baton on the arm joints and knees. They carried out a search in my house for about 30 minutes but did not find anything. After the search, I was dragged out in shorts while handcuffed. At the time it was daylight and there were people who had gathered around and saw what was happening. I was then taken to VCCU headquarters in Kireka, but along the way, the policemen continued beating me with a baton and whipping me with a pistol while asking me for the whereabouts of a missing car. One of the policemen hit me with a baton on the left side of my forehead as I was being pushed into a car and as a result I fell down and lost consciousness. I only regained consciousness when we reached VCCU headquarters. Due to the beatings, I could not walk on my own; I was supported to get out of the car. I was given pain killers by a doctor to reduce the pain."

CW1 further testified that the he still felt pain in the joints and developed a big swelling on the forehead which was operated on. He later sought treatment from African Centre for Treatment and Rehabilitation of Torture Victims (ACTV). He developed an eye problem during remand at Luzira Upper prison and sought treatment from an eye specialist at Pioneer Mall where he spent Shs. 200,000/= for eye glasses.

Upon cross examination, *CW1* stated that he was arrested on allegations of theft of a car by VCCU operatives. The VCCU operatives included a one Kwera, Ssebatta and Lawrence. During arrest, the VCC operatives beat him with a baton on the ankles, knee joints and head. He said that he received medical attention from ACTV and Mulago Hospital.

# CW2, Kalule Francis, testified that;

"On 16th July 2004 I appeared before Buganda Road Magistrate's Court on robbery charges. I was granted bail but as I was walking out of Court, I was rearrested by 5 men who did not tell me the reason for my arrest. The men begun beating me while asking me about the Iga Moses' whereabouts. A one Sankara who was one of the men who arrested me, beat me with a baton while others were punching and beating me on the knees, shoulders and back. I was then taken to VCCU headquarters, put in a room where I was interrogated. During interrogation, the persons who arrested me beat me for about 2 hours with a baton on the joints, ankles and arm joints while asking me the whereabouts of Iga Moses".

CW2 further testified that as a result of the beatings he became paralyzed and could not stand. One of the men cut off the tip of his second finger on the left hand using a hedge cutter. On 17th July 2004, he was taken to a room where he found the Iga Moses and Lubega Richard. He could not walk and had to use his hands and knees to crawl while being beaten by the operatives. They began interrogating him while beating them with electric wires, batons and sticks on allegations of theft of motor vehicles. He said that he was not given any treatment during the 30 days he spent in detention before being transferred to Makindye military barracks.

The testimony of the 1st complainant is corroborated by CW3 Lubega **Richard**, his son.

#### He testified that:

"At around 5:00 am on 21st July 2004, while home sleeping, I heard people banging on his door. Upon opening the door, I found the house surrounded by 5 armed people dressed in civilian wear. One of the men put me at gun point while asking me about the whereabouts of my father. Upon not finding my father in the house, the men ordered me to take them to his village in Matugga where my father was found. We found my father already arrested, at gun point and begging for mercy. I observed that he had already been beaten with batons all over the body but the men continued beating him for almost one hour. We were then both taken to Kireka VCCU headquarters where we were detained in different cells. We were later detained in the same cell. My father was dressed in a pair of shorts and was limping and had a swelling on the forehead. I was later released on bond but left my father in detention. I next saw him at Luzira Upper Prison after a long time."

During cross examination, CW3 testified that he saw Iga Moses being beaten with a baton and gun all over the body.

CW4, Dr. Kalanzi Edris, a Medical doctor attached to Mulago National Referral Hospital, testified that he examined the 1st Complainant, Iga Moses, at Mulago hospital on 29th April 2011. Iga Moses complained of a swelling on the face as a result of trauma. Upon examination, he noted that the complainant had a swelling under the skin which he discovered to be a lipoma which he surgically removed. He said that lipomas caused by something blunt hitting the surface, are called post-traumatic lipoma. No xray was carried out. The medical report was tendered in by learned Counsel for the Commission as an exhibit and marked $C1x2$ .

During cross examination by Ms. Maureen Ejang, learned Counsel for the respondent, he stated that a lipoma from trauma is usually associated with the factor of trauma and takes between 2months to 2 years to heal. He prescribed for him pain killers and physiotherapy to ease pain. His findings were based on the history given by the Complainant.

CW5, Dr Kyazze David, a Medical doctor at ACTV from 2004 to 2010, testified that on 7th July 2006, the 2nd Complainant Kalule Francis was admitted at ACTV. Upon examination, he noted that the 2nd Complainant's

left index finger was partially amputated. A physical examination found no abnormalities. The psychological examination established a mild degree of support consistent with allegations of torture. The medical report was tendered in evidence as an exhibit and marked $C2x5$ .

The respondent did not adduce any evidence or file written submissions to rebut the complainant's evidence. In the case of George Asiimwe Vs. Attorney General HCCCS No. 481/1997, the Plaintiff's case closed and the defendant offered no evidence. Justice Paul Mugamba held that the Plaintiff's evidence was not controverted and had to be accepted as the truth.

The evidence adduced by the complainants and their witnesses; CW3, 4&5 support their allegations of torture at the hands of state agents.

We therefore find, on a balance of probabilities, that the respondent's agents violated the complainants' rights to freedom from torture, cruel, inhuman and degrading treatment.

### Whether the Complainants' rights to personal liberty was violated $2.$ by the respondent's agents

The right to personal liberty is protected by the Constitution of the Republic of Uganda 1995, as well as international and regional human rights instruments.

Article 23 (1) of the Constitution provides for circumstances under which a person can be deprived of the right to personal liberty. Sub clause (c) provides that a person's right to personal liberty may be deprived for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

In addition, Article 23(4) (a) and (b) of the Constitution provides that a person arrested or detained for the purpose of bringing him or her before a court 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 arrest.

The International Covenant on Civil and Political Rights, 1966 under Article $9(1)$ provides that everyone has the right to liberty and security of person, and that no one shall be subjected to arbitrary arrest or detention. Further, Article 9 (3) of the above Covenant provides that everyone arrested or detained on a criminal charge shall be brought promptly before a Judge and shall be entitled to trial within a reasonable time or to release.

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

CW1 testified that he was arrested by RRU operatives who took him to VCCU headquarters where he was detained for 2 months. He was then transferred to Makindye Barracks where he was further detained for a week. Thereafter, he was taken to Kampala CPS on 29.09.2004 where he was detained until 30.09.2004 when he was produced in Court and remanded to Luzira Government Prison.

*CW2* testified that he was re-arrested on $16th$ July, 2004 after being released by court and taken to VCCU. Later the 1st complainant joined him on 17th July, 2004. They were detained for a month before being taken to Makindye Military barracks.

The Complainants, in this case, have demonstrated, in their evidence, that they were detained for two months before being taken to a court of law. This was not specifically denied or rebutted by the Respondent.

The Tribunal finds on a balance of probabilities that the Complainants' rights to person liberty was violated by state agents, and the respondent is vicariously liable for their actions.

#### $3.$ What remedies are available

Article 53 (2) of the Constitution states that the Commission if satisfied that there has been an infringement of a human right may order payment of compensation or any other legal remedy or redress.

Freedom from torture or cruel, inhuman and degrading treatment $\overline{a}$ Having found that the Respondent's agents violated the 1st Complainant's right to freedom from torture or cruel, inhuman and degrading treatment, the tribunal deems a sum of UGX 7,000,000/ $=$ (Seven million shillings only) as adequate compensation to him.

Having found that the Respondent's agents violated the 2nd Complainant's right to freedom from torture, cruel, inhuman and degrading treatment, the tribunal deems a sum of UGX 7,000,000/= (Seven million shillings only) as adequate compensation to him.

#### **Personal liberty** $\mathbf{b}$ )

The Complainants were illegally detained for two months. The tribunal notes that their arrest was not arbitrary as they were later taken to court and charged with theft of a motor vehicle.

Taking into account all the circumstances of this complaint, we consider a sum of UGX 4,000,000/= (Uganda shillings four million only) adequate compensation to each of the complainants for violation of their right to personal liberty. See Kamuntu Anthony vs Hajat Zam Sendagire HCCS 188 of $2009$ .

# **ORDERS**

## The Tribunal hereby orders as follows:

- 1. The complaint is allowed. - $2.$ The Respondent is ordered to pay the 1st Complainant Iga Moses a total sum of $11,000,000/$ = (Uganda Shillings Eleven Million) broken down as follows: - UGX 7,000,000/= (Uganda shillings seven million only) as general $a)$ damages for violation of his right to freedom form torture, cruel, inhuman and degrading treatment. - b) UGX 4,000,000/= (Uganda shillings four million only) as general damages for violation of his right to personal liberty. - The Respondent is ordered to pay the 2nd Complainant Kalule Francis $3.$ a total sum of $11,000,000/=(Uganda Shillings Eleven Million) broken$ down as follows: - UGX 7,000,000/= (Uganda Shillings Seven Million only) as $\overline{a}$ general damages for the violation of his right to freedom from any form of torture. - UGX 4,000,000/= (Uganda shillings four million only) as general $\mathbf{b}$ damages for the violation of his right to personal liberty.

- The damages hereinabove will carry interest at 5% from the date hereof $4.$ until payment in full. - Each party shall bear their own costs. $5.$

Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within 30 days from the date hereof.

Dated at **KAMPALA** this $\frac{25}{4}$ day of $\frac{4}{4}$ and $\frac{4}{4}$ 2023.

MUTONI

**HON: MARIAM WANGADYA CHAIRPERSON**

HON: COL (RTD) STEPHEN BASALIZA **MEMBER**

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**HON: SHIFRAH LUKWAGO MEMBER**