Kaddu Andrew and Ngobi Harid v Attorney General (Complaint UHRC 37 of 2012) [2018] UGHRC 8 (10 April 2018)

Full Case Text

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### THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT KAMPALA

### COMPLAINT NO. UHRC/37/2012

#### 1. KADDU ANDREW

**}::::::::::::::::::::::::::::::::::::** 2. NGOBI HARID

#### **AND**

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

#### **DECISION**

The Complainants, Kaddu Andrew and Ngobi Harid brought this matter against the Respondent seeking compensation for the violation of their rights to protection from torture or cruel, inhuman or degrading treatment or punishment and right to personal liberty. They alleged that on 26th February 2012, they were arrested by police officers attached to Kisubi Police Station on allegations of theft. That they were both taken to Kisubi Police Station and detained there until 29th February 2012 when they were released on police bond. They further alleged that while in custody, they were beaten by police officers on the ankles and knee joints using gun butts and a baton while coercing them to produce the alleged stolen property.

The Complainants contended that the actions allegedly committed against them by the police officers amounted to violation of their rights to freedom from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty and they hold the Respondent vicariously liable.

The Respondent through its representative, Ms. Nalukenge Harriet denied liability.

### **ISSUES**

- Whether the Respondent's agents/servants violated the Complainants' $(i)$ rights to protection from torture or cruel, inhuman or degrading treatment or punishment. - Whether the Complainants' rights to personal liberty was violated by $(ii)$ the Respondent's agents/servants. - Whether the Respondent (Attorney General) is liable for the violations. $(iii)$ - Whether the Complainants are entitled to any remedies. $(iv)$

Before I resolve the above issues I wish to note from the record that the Respondent was represented but Counsel only cross examined the 1st Complainant. She did not cross examine the 2nd Complainant and allthe Complainants' witnesses despite several adjournmentswhich weremade to that effect. Furthermore, Counsel for the Respondent did not bring any defence witness nor file submissions to rebut the Complainants' allegations.

I further note that the Complainants retained the duty to prove their case against the Respondent to the satisfaction of the Tribunal.

### 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 the facts exist"

### And under **S.102 of the Evidence Act** (supra);

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.'

I now turn to the issues.

1. Whether Kaddu Andrew and Ngobi Harid's rights to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents/servants.

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) gives an internationally agreed legal definition of torture by stating 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 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

Domestically, the Prevention and Prohibition of Torture Act, 2012 under **section 3** defines 'torture' as;

"any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as obtaining information or a confession from the person or any other person, punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit; or intimidating or coercing the person or any other person to do, or to refrain from doing, any act".

The Constitution of the Republic of Uganda, 1995 under Article 24 clearly prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

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The International Covenant on Civil and Political Rights (ICCPR), 1996prohibits torture or cruel, inhuman and degrading treatment or punishment under **Article 7**, which states; "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Similarly, the Universal Declaration of Human Rights (UDHR), 1948 states under Article 5 that; "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The actions committed against the Complainants would constitute "torture" if the same were proved taking into account the definition of torture as provided under Article 1 of the CAT. I shall evaluate the evidence adduced in order to determine whether the allegations by the Complainants amounted to the level of severity that constitutes what would be categorized as torture or whether the effects of the same actions amount to what is categorized as cruel, inhuman or degrading treatment or punishment.

In addition to that, I shall evaluate the evidence to determine whether the important four ingredients of torture as identifiable in the CAT definition and the current international concept of torture are proved by the evidence adduced. These four ingredients are;

- a. That the action has caused the victim severe pain or suffering, whether physical or mental. - b. That such pain and suffering was intentionally inflicted on the victim. - c. That the purpose of the action was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination. - d. That the actions were inflicted by or at the instigation of, or with the consent or acquiesce of a public official or other person acting in official capacity.

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Once the above ingredients are proved against the Respondent's agents, then it can be established that the Complainants were indeed subjected to torture contrary to the laws of Uganda and the various international instruments cited above.

## Evidence

The 1stComplainant, **Kaddu Andrew**testifiedthat on 26th February 2012 at 11:00pm while he was watching football at an Orphanage Home where he used to work as a guard his neighbor went and told him that his things had been stolen. That he went with him to his home and as they walked around, police officers arrested him and he was taken to Kisubi Police Post and detained. That he was arrested together with Ngobi Harid. He also stated that they denied knowledge of the stolen items and they were detained.

He added as follows;

"The next day a policeman took me to an office and started beating me using a gun butt. He beat me for 30 minutes and took me back to the cell. The next day, the same policeman beat me again in the evening. He beat me on the ankles and knee joints. On the 3rd day, police arrested a man with the stolen items, a generator and a solar battery. On the 4th day we were released on police bond. On release I went to Bakama Clinic for treatment. I was given half dose since I did not have enough money. I went back home."

During cross examination by Counsel for the Respondent, he stated that he was arrested with Haridbut the man who had stolen the property is called Kaggwa. That he used to play football with the 2nd Complainant every Saturday but they can no longer play football because of their injured legs. That they last played on 2nd February 2012 because his legs are painful. That he still has injuries and can't walk a long distance or run. That he did not have a medical report from the clinic.

The 2nd complainant, Ngobi Harid testified thaton 26th February 2012, at 11:00pm, while at an orphanage in Buzi Village watching a football match on television he saw one Fred Mbabali, whom he knew very well entering the orphanage. That he told themthat thieves had stolen his generator and TV and asked them to go with him to his home and see. That he showed themthe part through which the thieves had broken into. That they also found 2 policemen at his home.

He added as follows;

"They ordered us to go with them to the police post at Kisubi. As it was late, they detained us. I was with Andrew Kaddu. In the morning I was interrogated and beaten by 2 policemen. They wanted me to reveal the whereabouts of the stolen items. I was hit in the knee and ankle joints. I insisted I was innocent and did not know where the things were. They were beating me using gun butts. I was beaten in the presence of one Molly who had brought us food. The 3 days I was in custody I was routinely beaten every morning. I and Kaddu were each beaten in turns. After I was released I went to Namulanda clinic for treatment."

The Complainants' testimonies were corroborated by their witnesses.

Namuhiyi Nathan (CW3) testified that on 26th February 2012, at around 11:00pm, he received a telephone call from Kaddu Andrew, telling him how police officers had arrested him with Harid Ngobi. That he was accompanied by the vice chairperson toKisubi Police Post and the police officers confirmed the presence of the suspects - Kaddu and Harid on charges of burglary and theft. That they went back home and the following day, his wife Molly Nasimbwa told him that the Complainants were being tortured.

He further testified that he went to the police post and talked to the OC Post, who allowed him to talk to the Complainants. That Kaddu Andrew was limping while Harid had one of his eyes turned red. That he requested the OC to release them since he had got the real suspect. That the OC then decided to release them on police bond.

CW 4, Molly Nassimbwa testified thaton 26th February 2012 at 11:00pm, Kaddu called her and told herthat they had been arrested together with Harid on charges of theft. That he told her that they had not passed by the Chairman's place and so she woke up with her husband and went to the Vice Chairman's residence and together with him they went to Kisubi Police Station. That they went to the police station and requested to see the suspects and they confirmed their presence and then they left.

She added as below;

"The next day I and Kaddu's mother took them food at 8:00am. I saw policemen get Harid out of the cell. He got out a stick and started beating Harid ordering him to reveal where the stolen property was. He caned Harid several times. I called my husband and told him the suspects were being beaten. I requested that we give the suspects food. The policeman opened for Kaddu and the 2 suspects ate food. They took them back and we left. I again saw the 2 suspects after their release four days later. They had difficulty in walking as they had been beaten. Kaddu had been beaten in the legs and so had been Harid. I escorted them to a clinic in Namulanda."

The Complainants' testimonies and those of the witnesses corroborate each other with regard to this issue. There is therefore no doubt that the Complainants were severally beaten by the Respondent's agents and severe pain and suffering was caused to them. The reason for the beatings as stated above was to coerce them to confess to having stolen the property in dispute.

I note that the Complainants never produced any medical evidence to prove the allegation of torture. However, it is not a requirement in law that all assault cases should be proved by medical evidence. It was stated in by Okello J in the case of FRED KAINAMURA VS ATTORNEY GENERAL & ORS 1994 KALR 92 that it is not a requirement of law that every allegation of assault must be proved by medical evidence.

As noted earlier, the Respondent never called any defence witnesses and did not file submissions to challenge the evidence of the Complainants despite several adjournments. The Complainants' evidence was therefore not only solid but largely unchallenged.

Therefore, putting together all the evidence above, I reach a conclusion that the agents of the Respondent severally beat and injured the Complainants. I accordingly accept Kaddu Andrew and Ngobi Harid's testimonies as truthful.

In the case of GEORGE ASSIMWE VS ATTORNEY GENERAL HCCS NO.481/1997 where the plaintiff closed his case and the defendant offered no evidence, it was held by P. Magamba J. that the plaintiff's evidence was not controverted and had to be accepted as the truth.

WHEREFORE guided by the above principle, I find on the balance of probabilities that the Respondent's agents violated the Complainants' rights to protection from torture, cruel, inhuman and degrading treatment or

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punishment and the claim by the complainants of torture in the instant complaint is upheld.

## 2. Whether the Complainants' rights to Personal Liberty was violated by the Respondent's Agents.

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda, 1995. It is not an absolute right since it can be derogated from when any of the circumstances listed in Article 23(1) of the Constitution exist, for example where there is reasonable suspicion that a person has committed or is about to commit a criminal offence. The law prohibits arbitrary arrests and detention as the same Constitution sets out procedural guarantees to prevent the abuse of persons under arrest and detention. Thus, Article 23(4) (b) of the Constitution requires that anyone arrested upon reasonable suspicion that a person hascommitted or is about to commit a criminal offence and must if not earlier released be produced in court within 48 hours.

The 1stComplainant, **Kaddu Andrew** testified that on 26th February 2012 at 11:00pm while he was watching football at an Orphanage home where he used to work as a guard his neighbor went and told him that his things had been stolen. That he, together with Ngobi Harid were arrested and detained at Kisubi Police Station until 29th February 2012 when they were released on police bond. A lockup register was tendered in evidence as an exhibit and it revealed that the Complainants were indeed booked in on 26th February 2012 and released on 29th February 2012. This therefore means that the Complainants were in detention for a total number of 4 days and the 2 days being illegal in accordance with the law.

During cross examination, the Complainant remained consistent and stated that he was arrested on 26th February 2013 by 2 armed policemen in uniform and detained at Kisubi Police Station. That he was in detention for 4 (four) days andwas released on 29th February, 2012.

The 2nd Complainant Ngobi Harid testified that he, together with the 1st Complainant were arrested on 26th February 2012 and spent 4 days at Kisubi Police Station when they were released on bond.

The Complainants' testimonies were corroborated by their witnesses Namuhiyi Nathan and Molly Nassimbwa who both testified that the Complainants were

arrested on 26th February 2012 and stayed for 4 days in detention after which they were released. CW4 stated that she used to take food for the Complainants until they were released.

The evidence of the Complainants and that of their witnesses is consistent with each other in regard to the date in which the Complainant's were arrested and the period they spent in detention. This therefore means that the Complainants were in detention for 4 days.

I therefore find on the balance of probabilities that the Respondent's agents violated the Complainants' rights to personal liberty. Even though the arrest of the Complainants was justified within the meaning of Article 23 (1) (c) of the Constitution; as they were suspected of being thieves, this tribunal faults the state on their failure to produce them in court within 48 hours from the time of their arrest. This amounted to a violation of their rights to personal liberty contrary to Article 23(4) (a) & (b) of the Constitution of the Republic of Uganda, 1995.

Therefore, I find on a balance of probabilities that the Complainants' rights to personal liberty was violated by the Respondent's agents.

### 3. Whether the Attorney General is liable for the violations.

Section 3 of the Government Proceedings Act Cap 77 provides that the government is liable for all torts committed by its servants or agents. Section 10 of the same Act further provides that all civil actions against the government should be instituted against the Attorney General and this is reaffirmed under Article 119 A (4) of the Constitution of the Republic of Uganda, $1995$ .

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

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Following the above articulation, the Respondent in the present case is vicariously liable since the police officers who violated the Complainants' rights are public officers and thus, it is deemed that they were acting in the course of their duty.

### 4. Whether the Complainant is entitled to compensation.

# Under Article 50 (1) of the Constitution of the Republic of Uganda 1995,

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

Article 53(2) of the same Constitution gives the Commission power 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.

In this case, it has already been proved that the Respondent's servants/agents violated the Complainants' rights to protection from torture or cruel, inhuman or degrading treatment or punishment and personal liberty, it therefore follows that they are entitled to compensation by the Respondent.

In the case of Agaba Bernard Vs. Attorney General UHRR(2008-2011) Commissioner Fauzat Mariam Wangadya held that the Complainant was entitled to compensation for the violation of his right to personal liberty and that it was the practice of the Tribunal to award U. Shs 2,000,000=( Uganda Shillings Two Million) for every seven (7) days of unlawful confinement.

In the instant case, the Complainants were in detention for 4 days. The two days were lawful and the illegal ones were 2. Following the above criteria therefore, the Complainants are to be awarded for two day which I will calculate as below;

Ug. Shs.2,000,000/7=285,714/= per day. I note the economic situation and the roaminginflation in the country and therefore round it to Ug. Shs.300,000/ $=$ per day.

Therefore Ug. Shs.300,000 $*2$ days= Ug. Shs.600,000/=

Wherefore, I deem a figure of Ug Shs. 600,000 (Uganda ShillingsSix Hundred Thousand) to each of the Complainants as adequate compensation for the violation of their rights to personal liberty. I so award.

With regard to violation of the complainants' rights to freedom from torture or cruel, inhuman or degrading treatment or punishment, the compensation is based on the degree and severity of the cruelty and inhuman treatment and the fact that this freedom is an absolute right. 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 the complainant UGX 3,000,000/= (Three Million Uganda Shillings) as compensation for Violation of his right to protection from torture, cruel, inhuman and degrading acts.

Considering the matter before this Tribunal, the Complainantswere beaten with batons allover their joints by the police officers while forcing them to confess to the theft. I will take into consideration the fact that torture is a non-derogable right under Article 44 of the Constitution of the Republic of Uganda, 1995; and the current economic situation in the Country.

I accordingly award Ug. Shs. 5,000,000/= (Uganda ShillingsFive Million)to each of the Complainants as adequate compensation for the violation of their right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

#### **ORDER**

1. The complaint is allowed.

- 2. The Respondent is ordered to pay to the 1stComplainant Kaddu Andrew a sum of UG Shs. 600,000/= (Uganda ShillingsSix Hundred Thousand) as compensation for the violation of his right to Personal Liberty. - 3. The Respondent is ordered to pay to the $2^{nd}$ Complainant Ngobi Harid a sum of UG Shs. 600,000/= (Uganda ShillingsSix Hundred Thousand) as compensation for the violation of his right to Personal Liberty. - 4. The Respondent is ordered to pay to the 1st Complainant Kaddu Andrew a sum of UG Shs. 5,000,000/= (Uganda Shillings Five Million) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 5. The Respondent is ordered to pay to the 2nd Complainant Ngobi Harid a sum of UG Shs. 5,000,000/= (Uganda Shillings Five Million) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 6. The sum of UG Shs.11, 200,000/= (Uganda Shillings Eleven Million, Two Hundred Thousand) will carry interest at court rate from the date hereof until payment in full.

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

Dated at KAMPALA 10 day of Am 1, 2018.

**HON STEPHEN BASALIZA** PRESIDING COMMISSIONER