Kabale Benon v Attorney General (Complaint UHRC 145 of 2010) [2016] UGHRC 6 (29 November 2016)

Full Case Text

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#### THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **AT KAMPALA**

### COMPLAINT NO. UHRC/145/2010

# <table> KABALE BENON: COMPLAINANT

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

# [BEFORE HONOURABLE COMMISSIONER MEDDIE B. MULUMBA]

#### $\mathbf{D} \mathbf{E} \mathbf{C} \mathbf{I} \mathbf{S} \mathbf{I} \mathbf{O} \mathbf{N}$

The Complainant brought this complaint against the Respondent seeking compensation for the violation of his right to protection from torture or cruel, inhuman or degrading treatment and his right to personal liberty. He alleged that on July 14, 2010 while at Nandos restaurant in Kampala, he was arrested by UPDF soldiers and a policeman on allegations that he was a terrorist. That he was taken to CPS where he was detained for eight (8) days and that while in detention, he was severely beaten by inmates under the watch of the police officers. As a result of the beatings, he suffered injuries and damage to his face, feet and arms. He also stated that upon his release, he lost his property and was also terminated from his place of work due to fears that he was a terrorist.

The Respondent as represented by Mr. Geoffrey Madete denied the allegations. **Issues:**

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The issues for determination by this tribunal are:

- Whether the Respondent's agents/servants violated the Complainant's right $(i)$ to freedom from torture, cruel, inhuman or degrading treatment or punishment. - Whether the Respondent's agents violated the Complainant's right to $(ii)$ personal liberty. - Whether the complainant is entitled to any remedies. $(iii)$

Before I determine the above-mentioned issues, I wish note that this matter was heard before Commissioner Akurut Violet Adome and it is from her record of proceedings that I have arrived at this decision.

The testimonies of the parties and their witnesses are also relevant in determining the above mentioned issues.

The complainant testified that on July14, 2010, he was arrested by UPDF soldiers and police officers from Nandos restraunt who informed him that they had instructions to arrest him from police headquarters but did not inform him of the reason for his arrest. That he was detained at Central Police Station where he was severely beaten using a mopping brush by fellow inmates in the presence of police officers that he sustained injuries all over his face and all over his body. That the inmates also poured urine on him and continued to beat him until he started bleeding whilst the police ignored his plea for help. The Complainant tearfully testified further, that he was denied food where he was forced eat from the dustbin and he was also denied medical treatment by the officers. He testified that around midnight the following day, the inmates forced him to clean toilets and continued to beat him. That for five days he was denied food until his relatives found out about his arrest and began bringing him food. That his relatives also informed the

police about the Complainant's mental illness which they refused to acknowledge and continued detaining him.

The Complainant testified further that he was finally released on the 22nd July, 2010 with a police medical form referring him to Butabika hospital for assessment and treatment. He received first aid treatment from his personal doctor Dr. Nickson Ngum in Mbuya. That upon release, he found that his property had been thrown out of his house by his landlord following a publication in the local papers which stated that he was a terrorist. That as result of the arrest and publication, he was terminated from various positions which he held before his reputation was tarnished and that this greatly traumatized him.

Documentary evidence in support of the Complainant's claim was also tendered in and accepted as part of the evidence. This included the lock up records from Kampala Central Police Station which indicated that the Complainant was detained from 14th to 21st July 2010 (indicating crime of 'security threat') which was accepted by the Tribunal and marked as exb.1, the Complainant's psychiatry report from Butabika Hospital dated 3rd October 2011 and signed by Dr. Julius Muloni which was accepted and marked exb.2

The Complainant's witness Kenneth Kimuwe (CW1) testified that in 2010, he was contacted by an unidentified person and informed him that the Complainant had been arrested and detained at Kampala CPS. That upon visiting the Complainant, he found that he was badly beaten and had wounds all over his body. That he informed the police of the Complainant's mental health and that he was undergoing treatment at Butabika which the officers ignored. That he began taking food for the Complainant which sometimes was blocked by the police officers. That he spent two weeks in detention. That upon his release, the Complainant was

very weak and was taken by the police to Mbuya hospital to his private doctor where he was referred to Mulago hospital.

The Complainant other witnesses, Dr. Jurua Nixon, Dr. Magala William who all treated the Complainant after his released testified as expert witnesses and interpreted medical reports in light of the Complainant's medical records, which evidence I will consider in the course of resolving the fore mentioned issues.

I now turn to the issues.

Issue No. 1: -Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.

Article 24 of the Constitution of the Republic of Uganda 1995 provides that; "No person shall be subjected to any form of torture, cruel, inhuman or degrading *treatment or punishment.*"

This is reinforced by Article 44(a) of the same Constitution which provides that freedom from torture, cruel, inhuman or degrading treatment or punishment is nonderogable.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) which Uganda has ratified, defines torture to mean "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 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 other person acting in an official capacity."

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I adopt this definition since Uganda has ratified this Convention. I will therefore consider the evidence available in the light of this definition.

The question before me therefore is, whether the facts as established by the evidence prove that the Complainant was tortured.

The Respondent did not adduce any evidence to rebut that of the Complainant, neither did he file any submissions in defence of the matter but only cross examined the Complainant and his witnesses. The above scenario notwithstanding, the Complainant remained with the duty to prove their claims to the satisfaction of the tribunal as provided by the evidence Act.

Under S.101 $(1)$ of the Evidence Act Cap 6:

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

Under S.102 of the Evidence Act:

"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".

It is the Complainant's claim that on July 14, 2010, he was arrested by UPDF soldiers and police officers from Nandos restraunt and detained at Central Police Station where he was severely beaten using a mopping brush by fellow inmates in the presence of police officers that he sustained injuries all over his face and all over his body. That the inmates also poured urine on him and continued to beat him until he started bleeding whilst the police ignored his plea for help. The Complainant testified that he was denied food for five days and hence forced eat

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from the dustbin, was denied medical treatment and the officers continued to detain him despite having knowledge of his mental illness.

That upon release on the 22nd July, 2010 he received first aid treatment from his personal doctor Dr. Nickson Ngum in Mbuya.

The Complainant's evidence was corroborated by CW1's testimony where he informed this Tribunal that in 2010, after receiving information about his arrest, he visited the Complainant In detention at CPS Kampala where he found that he was badly beaten and had wound all over his body. That he also informed the police about the history of Complainant's mental health and how the complainant was undergoing treatment at Butabika which was ignored by the officers ignored. That he began taking food for the complainant which sometimes was blocked by the police officers.

Dr. Jurua Nixon, testified before the tribunal and interpreted the Complainant's medical examination reports (Ex1) he had authored. He informed the Tribunal that at the time of the Complainant's arrest, there was a high security risk alert within the city. That he had been treating the Complainant for Bipolar since 2005. He stated that when he examined the Complainant in October 2010, the complainant came to him where he was badly bruised, very dirty and swollen; had sustained multiple wounds on the scalp, face, trunk and legs; had also sustained fracture on the small finger on the left hand. That he also had to stabilize the Complainant's mental state.

During cross examination the Respondent's Counsel only challenged the evidence of the witness in relation to mental capacity of the Complainant at the time of arrest and the cause of the injuries sustained by the Complainant. The expert witness stated that the Complainant's condition can make him calm or provocative and could sometimes cause him to be provocative.

The Complainant's second expert witness, Dr. Magala William CW4, a physiotherapist at Mulago Hospital with ten years of experience testified and corroborated the Complainant's claim in as far as that he treated the Complainant during physiotherapy treatment since July 2013. That the Complainant had numbness of the hands that he interpreted could have been caused by a road accident. That it was recommended by the doctors from Mulago that the Complainant conduct an MRI to determine whether to operate on him but this was not done due to financial constraints. He further testified that the Complainant also exhibited neck strain which had improved though the Complainant still complained of pain in that area.

During cross examination, the Respondent's Counsel mainly dealt with the issue of mental capacity of the Complainant at the time of his arrest and questioned whether the Complainant was on medication. The Complainant responded and clarified about his mental health and stated that his condition (Bipolar disorder) does not cause hallucinations but varying moods.

I find that there is incontrovertible evidence that the Complainant was arrested and detained at Kampala CPS. The Complainant's evidence and that of his witnesses all support his claim that while in detention he was subjected to physical and mental suffering.

Even though none of the witnesses really saw him being beaten, I have considered their independent testimonies and the sequence of events after the Complainant's arrest and I'm convinced that the Complainant was beaten while in police custody.

The Complainant stated that while in detention, he was severely beaten by inmates under the watch of the policemen who should have protected him and the complainant sustained severe injuries all over his face, feet and arms. That he was also denied access to medical treatment and food. CW1's testimony placed the complainant at Kampala CPS and he testified that he found the complainant in custody at Kampala CPS with injuries on his face and the right hand swollen with a dislocated finger with bruises.

He further informed this Tribunal that when he informed the Complainant's mental health where he even presented his medical records of Butabika in light of the same, the police ignored them and continued to detain the complainant. It is also CW1's testimony that he started taking food for the complainant while in detention where he was sometimes refused . I find that the actions of the police as evidenced by the above evidence goes a long way to show that the officers at CPS inflicted upon the complainant mental and physical suffering by allowing the beating of the complainant and denying him access to food and treatment.

The complainant has also presented documentary evidence inform of medical treatment notes (Ex 1 &2) and his expert witness all testified in support of the complainant's claim. The first Expert witness classified the injuries sustained by the Complainant as grievous harm which means that the complainant suffered severe and painful injuries.

I note that even though the physical torture inflicted upon the complainant was meted upon him by inmates at CPS and not the officers themselves, this was done with the acquiescence of the police officers as evidenced by the Complainant who in his testimony informed this tribunal that even when he informed the Police of the brutality of the inmates, he was left in the same cell where he endured beatings and degrading treatment at the hands of the inmates. The Complainant occasionally broke down and wept as he recounted the ordeal and humiliation he went through

at the hands of the inmates and the way the police ignored his pleas when he asked for medical attention and was also denied food.

I also find that the burden as such then shifts on the police to provide a plausible explanation for the torture marks that the complainant sustained while under their custody

In the case of **Selmouni of 1999** (application no. 25803/94), it was held among others that where an individual is taken into custody in good health but is later found to be injured, its incumbent on the state to provide a plausible explanation of the events leading to the existence of the injuries, failure of which the authorities must be held liable for the physical and emotional and psychological torture of the complainant.

The complainant's evidence remained undisturbed even in face of crossexamination by learned Counsel for the respondent who sought to challenge the complainant's evidence by raising the issue of the mental capacity of the complainant. Since the respondent did not call any evidence to rebut the evidence presented by the complainant, neither did they file any submissions to challenge the truthfulness of the complainants' evidence despite being given ample time to do so. I therefore accept his evidence as truthful.

I therefore find that on the balance of probabilities, the Respondent's agents violated the Complainant's right to freedom from torture, cruel, inhuman and degrading treatment or punishment and the claim in the instant complaint is upheld.

Issue 2: Whether the Respondent's agents/servants violated the Complainant's right to personal liberty

I shall determine this issue within the context of the relevant legal framework that guarantee the protection of peoples' right to personal liberty.

The right to personal liberty is guaranteed and protected internationally first, through Article 3 of the Universal Declaration of Human Rights (UDHR) of 1948, which provides for everyone's right to life, liberty and security of person, and also prohibits arbitrary arrest and detention of anyone except where the established law allows this to be done. Similarly, Article 9 of the International Covenant on Civil and Political Rights, 1976 which Uganda has signed and ratified, also prohibits arbitrary arrest and detention, or any limitation on individuals' right to personal liberty, unless this is done on grounds and procedures established by law.

At the African regional level, the African Charter on Human and Peoples' Rights of 1997 also under Article 6 guarantees for "every individual 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 lay".

Here in Uganda, the Constitution of 1995 under Article 23 guarantees and protects the right to personal liberty as a positive right for everybody, which can only be limited under the circumstances that are specified under Article 23 (1) of the same Constitution. Article 23(4) provides that anyone who is arrested or detained on suspicion of having committed or about to commit an offence under the laws of this country, must be released on Police Bond or taken to Court as soon as possible but in both cases, not later than forty-eight hours from the time of his or her arrest. This legal requirement is again specifically and explicitly stated in Section 25 (1) of the Police Act Cap. 303. In addition, Article $23(5)(c)$ of the Constitution provides that where a person is restricted or detained, that person shall be allowed $10$

access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.

In the case of Prof. Syed Sufderal Huq vs. Attorney General (1995) 11 KALR 82 Justice Byamugisha J gave content to the right to personal liberty and stated that the basis for an action of unlawful arrest and detention is the mere imprisonment itself. That the plaintiff has to prove that he was arrested by the defendant and thereafter the burden shifts to the respondent to justify the action taken. Similarly in Captain Sulait Mwesigye Vs Attorney General UHRC NO.2002/1998 it was held that the Complainant should have been produced before a Court of law within the stipulated 48 hours, failure of which amounted to a violation of his personal liberty.

The key question I must now seek to answer is whether the Police officers at Kampala Central Police Station actually arrested and detained the Complainant illegally in breach of the provisions of the Constitution of Uganda and the Police Act, and also ignored the provisions in the International and Regional (African) human rights legal instruments I have summarized here.

RICHARD CLAYTON & HUGH TOMLINSON in their book The Law of Human Rights Volume 1 at page 455 write as follows:-

"The tort of false imprisonment is committed by someone who intentionally subjects another to total restraint of movement either by actively causing his confinement or preventing him from exercising his privilege of leaving the place Any interference with liberty is unlawful unless the person where he is. responsible for the imprisonment can show that it is justified".

In the instant case the Complainant testified that he was arrested on the 14th July 2010 from Nandos restaurant and detained for eight days at Kampala Central Police Station on allegations of terrorism. This testimony is corroborated by the lock up records from Kampala Central Police Station which indicated that the Complainant was detained from 14th to 21st July 2010 for crime of 'security threat' that was admitted in evidence as EX 1. It is a finding of this tribunal that while in detention, the Complainant was subjected to physical torture by fellow inmates in the presence of the police officers for which he sustained severe injuries but was denied access to medical treatment for the injuries. It is also a finding of this tribunal that while in detention, the Complainant was denied access to treatment for a known mental condition (Bipolar disorder); and the police only referred to Butabika national referral hospital upon his release.

Whereas the Complainant indicated to have been arrested on suspicion of having committed a crime of terrorism, it is arguable that the security operatives were justified in arresting and detaining him for having been suspected of committing a criminal offence under the laws of Uganda. On the other hand, the document exhibited as EX 1 indicated 'security threat' as the reason for the detention, and hence without the Police explanation justifying the arrest and detention, I find that the police may not have had reasonable grounds for arresting the Complainant.

This is because, and as rightly observed by Dr. Magala William, there was a high security alert in the city during that period following the Kampala twine bomb attacks on 11th July 2010 and the complainant may have been a victim of circumstances.

Be it as may be, having arrested and detained the Complainant, Police ought to have released him on police bond or taken him to court within 48 hours of his arrest as provided by the law. This was never done. In fact the Complainant was never taken to court and was just released on 22nd July 2010.

I therefore hold that the Respondent's agents/servants violated the Complainants' right to personal liberty. He was detained at Kampala Central Police Station beyond 48 hours from the time of his arrest, during which detention ion he was denied access to medical treatment for the injuries he had sustained in the police custody and for a known Bipolar disorder. In so doing the police officers were at all the material time acting in the course of their employment and hence the Respondent is vicariously held liable for the violation.

## Issue No.3:- Whether there is any remedy due to the Complainant.

The answer to this issue is yes. A Complainant whose human rights are violated is entitled to redress/remedy.

Under Article 53 (2) of the Constitution, the Uganda Human Rights Commission may, if satisfied that there has been an infringement of a human right or freedom, order for payment of compensation or give any other legal remedy or redress. Further, Article 23(7) of the Constitution provides that a 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 agent of the State or other person or authority.

## Article 8 of the Universal Declaration of Human Rights provides that

"Any person who claims that a fundamental right or freedom guaranteed under the Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

In this Complaint it has been proved to the satisfaction of the Tribunal that Kabale Benon's rights were violated and I find that he is entitled to a remedy in form of compensation. Accordingly the only question left is what quantum of damages he is entitled to.

It is the finding of this tribunal that the Complainant was subjected to immense physical and mental suffering during his eight days detention at Kampala. The suffering was occasioned through beatings by inmates under the watch of the police officers of Kampala CPS and as a result thereof he suffered injuries and damage to his face, feet and arms. He was denied access to treatment of the injuries sustained and of his known bipolar disorder; was denied food for about five days that he resorted to eating from the dustbin.

While he testified, the Complainant's demeanor was that of a traumatized man as he recalled the treatment he underwent at the acquiescence of the policemen.

As was held in *Osifelo et al v R C A Solomon Islands (1995) 3 LRC, 602 at 608* $(Kinby P)$ :

"The prohibition of torture enshrines one of the most fundamental values of a democratic society. Its presence in a national Constitution commits the country and especially its law enforcement officers to performing their difficult duties with due regard to the essential dignity of every human being. The Constitutional instruction must be obeyed by all. It must be enforced even in hard cases by court".

Taking into account all the above circumstances, plus the fact that the injury and mental suffering experienced the Complainant and inflicted in the presence of the Respondent's agents who are mandated to protect and serve the people, I find a figure of UGX 14, 000,000/- (Uganda Shillings Fourteen million) as reasonable compensation for the violation of the Complainant's right to freedom from torture

or cruel, inhuman or degrading treatment or punishment and UGX. 2, 000,000/-(Uganda Shillings two million) as reasonable compensation for the violation of his right personal liberty. I so award.

## **ORDER:**

$(i)$ The complaint is allowed.

- $(ii)$ The respondent is ordered to pay the Complainant Kabale Benon a total sum of UGX. 16,000,000= (Uganda Shillings Sixteen million) broken down as follows: - a. UGX **14,000,000/-** (Uganda Shillings fourteen million) $\overline{as}$ compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment - b. UGX. $2,000,000 =$ (Uganda Shillings two million) as compensation for the violation of his right to personal liberty; - The above total sum of UGX. 16,000,000= (Uganda Shillings Sixteen $(iii)$ million) shall carry interest at court rate from the date of decision until payment in full.

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

DATED at Kampala this $\frac{2}{3}$ day of $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\frac{2}{3}$ $\$

**IE B. MULUMBA** PRESIDING COMMISSIONER