Kadoma Atwooki v Attorney General (Complaint No: UHRC/FPT/071/2010) [2022] UGHRC 13 (20 January 2022)

Full Case Text

![](_page_0_Picture_0.jpeg)

# **THE REPUBLIC OF UGANDA**

# **THE UGANDA HUMAN RIGHTS COMMISSIONS TRIBUNAL**

### **HOLDEN AT FORTPORTAL**

## **COMPLAINT NO: UHRC/FPT/071/2010**

**KADOMA LIVINGSTONE ATWOOKI:::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**AND**

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

#### **{BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO}**

#### **DECISION**

The Complainant **(C),** Kadoma Livingstone alleges that on 31st August 2010 at around kOOp.m, while at Mahyoro Kabira Village to sell his maize to a one Byaruhanga Nshaija , he was beaten by a Police officer named SPC Mistaki Siraji attached to Mahyoro Police Post using a stick on the neck and other body parts on allegations of being a non-citizen of Uganda. That as result ofthe beatings inflicted upon him, he developed swellings and wounds on his body. That he later sought treatment at Kicheche health unit and Kagongo Hospital.

**C,** therefore prayed to the Tribunal to order the Respondents (R) to pay him compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

**R,** who was represented by counsel (RC's) Ms. Tusiime Ann holding brieffor Mr. Twinomugisha Mugisha denied liability and opted for putting up a defense in the matter.

**The Issues to be resolved by the Tribunal are:-**

- 1. Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by R's Agents. - 2. Whether R (Attorney General) is liable. - 3. Whether C is entitled to any remedies.

However, before I resolve the issues above, it is pertinent for me to note that this matter was entirely heard by former Hon. Commissioner Stephen Basaliza and partly by Hon. Commissioner Victoria Businge-Rusoke and it is from their record of proceedings that I have arrived at this decision.

Accordingly, as required under sections 101(1) and 102 of the Evidence Act Cap 6, and the case of **JOVELYNE BARUGAHARE V ATTORNEY GENERAL SCCA NO. 28/1993,** it is the duty ofthe Complainant to prove his case against Respondent on a balance of probabilities.

Let me now resolve the aforementioned four issues raised above before the Tribunal.

# **Issue 1 (a): Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State Agents**

The right to freedom from torture or cruel, inhuman and degrading treatment or punishment is guaranteed under the international and Regional human rights instruments which have were signed ratified by Uganda.

The Universal Declaration on Human Rights of 1948, though not binding provides for the above mentioned right which was later adopted under Article 7(a) ofthe International Covenant on Civil and Political Right of 1966. The foregoing Article provides that:

No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.

Article 4 and 5 ofthe African Charter on Human and Peoples' Rights of 1986 provides that:

Human beings are inviolable and therefore, respect for life and the integrity of a person should be upheld; and further that all forms ofexploitation and degradation ofman particularly torture, cruel, inhuman or degrading treatment or punishment shall be prohibited.

Subsequently, Article 24 of the Constitution of the Republic of Uganda 1995 also prohibits the violation of an individual's right offreedom from torture or cruel, inhuman or degrading treatment or punishment. The aforementioned article specifically slates that "no person shall be subjected to any form oftorture or cruel, inhuman or degrading treatment or punishment." Moreover, this same right is highlighted under Article 44(a) of the Constitution as a non derogable right irrespective of any prevailing circumstances.

The afore cited international, regional and national legislation do not give or explain what the concept(s) of what torture or cruel, inhuman or degrading treatment or punishment entail, yet it is very useful that an informed and just finding be made ofC's facts/allegations.

Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment gives an internationally agreed legal definition oftorture as:

"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 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

Considering National Instruments, 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".

Let me now move to define the other concepts associated with torture, that is, cruel, inhuman or degrading treatment or punishment. In the case of **IRELAND VS UNITED KINGDOM (1978)2 EHRR 25,** the court differentiated torture from inhuman treatment or punishment and from degrading treatment or punishment by noting that torture required a deliberate inhuman treatment causing very serious and cruel suffering whereas inhuman treatment or punishment involved the infliction of intense physical and mental suffering which required a minimum level ofseverity; and further that degrading treatment required ill treatment designed to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.

The Uganda Human Rights Commission Tribunal has subsequently adopted an evolving standard for determining when acts constitute torture, a standard that takes into account present-day conditions and human rights norms. This Tribunal emphasizes that the prohibition against torture enshrines one ofthe most fundamental values of democratic societies that must be respected even in the most difficult circumstances, the Tribunal was established to protect human rights and fundamental liberties, which "correspondingly and inevitably requires greater firmness in addressing breaches of the fundamental values of democratic societies." I observe that the 1995 Constitution of the republic of Uganda is a "living document," and 1 would like to express that "certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in the future." In making a determination regarding whether torture or cruel, inhuman, or degrading treatment has occurred, the Tribunal has considered four decisive elements;

- a) The nature of the act or acts involved; - b) The severity ofthe physical and/or mental harm suffered as a result ofthe acts; - c) The purpose of the actor, evidence on the purpose and Intent oftorture. - d) The official status and/or individual responsibility ofthe actor.

International human rights scholars have also analyzed these elements and have offered commentary on how they should be applied to distinguish torture and inhuman or degrading conduct. These four elements, and the jurisprudence that has interpreted them, are discussed more below in the evaluation of evidence.

I shall evaluate the evidence adduced in order to determine whether the allegations by the complainant amounted to the level ofseverity 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.

Once the above elements are proved against the Respondent's agents, then it can be established that the Complainant was indeed subjected to torture contrary to the laws of Uganda.

The Tribunal is called upon to determine whether the actions of the Respondents as described above constitute a violation ofArticles 24 & 44 ofthe Constitution as alleged by the Complainant. The Tribunal observes that the complainant and his witnesses testified and were cross examined by respondent's counsel but the respondent never called any defence witnesses nor did they file written submissions despite several adjournments to do the same. Therefore, the Respondent has not made submissions on the Merits despite having been requested to do so on a number of occasions. The Tribunal will therefore examine the Complaint on the basis of the information at its disposal and must give due weight to the Complainant's allegations insofar as these have been adequately substantiated before this Tribunal.

**C,** Kadoma Livingstone Atwooki testified that he is 43 years, married with children, self-employed and a resident of Bugina Village, South ward, Bufumbira, Kisoro District. That on 31st August 2010 at around l:00p.m, while at Mahyoro Kabira Village with a one Byaruhanga Nshaija, That they proceeded to the polling station to meet transact with a one Tumushabe to carry out a maize transaction. That when they arrived at the polling station, an armed police officer holding a gun asked them what they wanted and they told him they were looking for a one Tumushabe on issues of buying maize. That the police officer was dressed in police uniform with a name tag that read Mistaki Siraji. That the officer started beating him and he even cocked his gun and pointed it at them. That he ordered them to leave and as he took his first step he beat him on his neck with a stick on the neck, hands, ribs and head. That Byaruhanga kept pleading with them that was beating the complainant for no reason. That as the officer beat him he kept saying;

#### *"let me beat him. He is not a Ugandan "*

C, further stated that he had a voter's card and graduated tax tickets.

#### C further narrates,

*"He kept beating me saying it is ordersfrom above. He could beat me at intervals of20 minutes people were saying... kill him you will eat him*

That the officer pointed the gun at the public. C testified that he got onto a motorcycle and went to Mahyoro Health Centre Unit and they asked for medical form 3 (MF3) from Mahyoro Police Post. That it was the O/C Mahyoro Police Post who gave him the MF3 and he said whoever beat him did bad and said that he knew the police man who had beaten him. The Complainant further testified that he was unconscious as he was taken to Kicheche hospital as they could not manage his condition at Mahyoro hospital. That he did not know those who took him to Kichehe. That only one doctor called Nkurunziza examined him and referred him to Kagongo. That while at Mahyoro and Kicheche he was given tablets and a medical form to proceed to Ibanda.

The certified medical report from Kicheche hospital was tendered in for identification purposes and marked as I. D1. He further testified that he went to Ibanda hospital on 31st August 2010. At Ibanda he was admitted after examination. The doctor told him he had been severely beaten. He further stated that he spent only one night al Ibanda and asked for a discharge and went to Kisoro.

During cross examination, C testified that the beating started at 1:00pm and went on for 20 minutes

**CW1,** Byaruhanga Joseph testified that he was 53 years old, a business man and a farmer. He stated that he is a resident of Bwani cells, Mahyoro, Kamwenga, he was married with six (6) children. He stated that he knew Kadoma Livingstone as trader of maize.

He testified that on 3 lsl August 2010, while at Mahyoro at 11:00am, he asked **C** if he had maize to load and told him that he had and took him to a one Tumushabe to show him the maize. That when they did not find him at his business premises, he called them and told them where to find him. That just before reaching him at a polling station, they found a police officer in uniform and he started beating Kadoma.

That he got scared and went at distance but asked him why he was beating C. That the officer was carrying a gun which he cocked and threatened them. That he beat him on shoulders, hands for a period of 15 - 20lh minutes. That he took Kadoma to Mahyoro hospital. Fie stated that the name tag on uniform ofthe officer was Mistaki

He further described the condition of the Complainant;

*"Kadoma had wounds and was bleeding. He was not steady and hadpain*

He further testified that at the police station, they were given a police form by the O/C police post, that he then left him and went away.

During cross examination, **CW1** testified that **C** was beaten for about 20 minutes and the police officer was using a long stick about a meter in length and big in size. He stated that there were many people at the police station present. He stated that he is not related to C but he is a business associate. That C was in a cell within Mahyoro police post.

**CW2,** Tumushabe Edison testified that he was 48 years old, a resident of Kabale village, Bukurungu Parish, Mahyoro sub county, Kamwcngc Distict and that he is a peasant. He testified that one day in August 2010 at around 2:00pm, while he had gone to vote at Kabanda polling station Bukurungu parish, he saw the policeman called Mistaki as he was in uniform and holding a gun beat C with a stick and thereafter cocked a gun.

That he beat him all over the body. He beat him for about 30 minutes. As he beat him he was saying;

*"You are a Rwandan andyou are not supposed to be here ".*

He confirmed that C was badly beaten and his body peeled off and got swollen.

That after beating him, C together with a man called Nshaija Byaruhanga left the scene. That after about a month, The Complainant told him he was in hospital.

On cross examination, **CW2** testified that he knew C as he was his very good friend. He stated that C was beaten all over the body as he rolled on the ground. That there were other witnesses about 20 in number one of whom is Byaruhanga Nshaija. He stated that C was taken to Mahyoro Hospital.

**CW3,** Dr. Nkurunziza Stephen testified that he is 49 years old, married and a resident of Mubuku lower LC I Mubuku parish, Maliba Sub County in Kasese district. He stated that he is a senior clinical officer by profession and employed by Kasese District Local Government and the incharge of Mukhati health Centre III. He testified that he treats patients both in and out patients referred to him from police for assault and defilement and all court cases.

He stated that he obtained a Diploma from fort portal School ofClinical Officers and qualified in October 1994, now 23 years in service. He stated that he had come across C when he was working in Kamwenge District Local Government, in- charge of Kicheche Health center III, 2010.

He stated that he authored the medical document (MF3) bearing the names of Kadoma Living stone on 31st Aug 2010, and it bore his signature. He testified that Kadoma was referred by police to Mahyoro, but he came to Kicheche health Centre III and had been assaulted. That the police asked him to examine him and furnish them with a report which he did.

He describes his findings below; He examined him and found he had an inflammation (swelling) on the right elbow joint, it was round and measuring 2cm and diameter was 4cm. 11c also had a bruise on the left shoulderjoint, which was measuring 4cm long x 2cm wide. He also had a swelling/inflammation on the right side ofthe neck which was 1 Ocm long and 4cm wide.

Further he stated that from the examination that he found that C had been assaulted by a blunt object and on interview he told him it was a stick. The neck muscle ofthe right side was tender and being inflamed with severe headache and dizziness. That he finished a report and sent it back to police but advised C to go to Ibanda hospital for scanning and further management if it was possible. He classified the injury it as grievous harm.

He further gave an opinion that the effect would be trauma as he was psychologically tortured and was beaten on the head which made him dizzy and could have easily developed a clot that could lead to permanent damage. He slated that is why he referred him to Ibanda hospital so that he could be scanned of the above. He further testified that the Complainant had chest pain which could have affected his capability as a business man.

The certified medical document from Kicheche Health Unit was tendered in to form part of the C's evidence.

On cross examination, CW3 testified that he was in Kicheche in 2007 and he remembers C since

he was unique and stated that he was touched by C's condition. He testified that he did not include the effects of assault as clots and dizziness in his report though he thought he would talk about it.

He also stated that a blunt object is one that can cause tumor . He further added that the bruise could have been caused by a scuffle or a blunt object like a stick. That he conducted tests like physical examination. That through these, he saw inflammation and open injuries. He also testified that he had no sufficient equipment and hence the referral ofthe patient to Ibanda hospital.

He stated that more results could be obtained from Ibanda. However it should be noted that complainant on several occasions tried to obtain these records from Ibanda hospital according to the proceedings but failed to secure them.

The position of case law is that one need not have medical evidence in order to prove assault. In the case of *FRED KAINAMURA AND ANOTHER vs ATTORNEY GENERAL, 1994, KALR* 92, in which Justice Okello held as follows:

*"It is not a requirement of the law that every allegation of assault must be proved by medical evidence. Ifa witnesssays "he boxed me and kicked me ", then that is the evidence of assault. You do not need medical evidence to prove that he was boxed and kicked. Medical evidence helps to prove (he gravity ofthe assault*

The same principle is also slated in the case of *RLANDINA NSIIAKIIRA vs KAMPALA CITY COUNCIL, IICCS (248/02 (24/5/04 AT KAMPALA)* in which Justice Yorokam Bamwine also held as follows:

*"A person can testify in court as to her injuries without the aidofan expert medical witness as long as the party describes the injuries clearly. —while it is prudent practice to seek expert opinion ofthe doctor on the nature ofsuch injuries, it by no means implies that absence ofsuch evidence would necessarily he fatal to the plaintiffs case. It must all depend on available evidence and its quality. Medical evidence is ofcourse helpful that it isfrom an expert. In its absence, other evidence may suffice*

I find that the confirmatory medical evidence from Ibanda where the complainant had been referred to due to lack of enough equipment at Kicheche Health Unit does not in any way affect the Complainant's evidence as the available medical evidence and testimony ofthe expert witness is corroborative ofthe allegations of torture.

I now therefore seek to determine whether the actions committed against C constitute "torture or cruel, inhuman or degrading treatment or punishment in line with the above legislation and/or case precedent and whether the evidence adduced is in line with the four elements oftorture.

According to C's evidence, it is revealed that there was assault occasioned on him. The medical evidence has shown that indeed the complainant was subjected to acts oftorture. The eye witnesses did see the complainant being beaten while al the polling station and they managed to name the perpetrator of such acts. The officer who carried out the torturous acts was heard saying by the complainant and his witnesses;

### *" "You are a Rwandan andyou are not supposed to be here ",*

He intentionally subjected this complainant to acts of torture citing his lack of Ugandan citizenship. Human rights are inherent and non-discriminatory despite ones nationality or race. This officer used his office and powers (stale agent working under the Uganda Police Force) to carry out an outrageous act that resulted into the complainant getting injuries and suffering and hence violating his right to freedom from torture. Torture is outlawed by **Article 24 of the Constitution of the Republic of Uganda, 1995.** It is also emphasized in *ATTORNEY* *GENERAL VS SALVA TORIABUKI CONSTITUTIONAL APPEAL NO. 1/1998* that freedoms enshrined under Article 44(a) of the Constitution are non-derogable which include freedom from torture or cruel, inhuman and degrading treatment or punishment. There is no excuse whatsoever of having to subject a human being to torture. The Attorney General though its representative did not furnish any defence witnesses and when given leave to file submissions they still did not do so. This left the Complainants evidence wholly unchallenged In *. EDEKU VS ATTORNEY GENERAL, (1995) XL KALR 24* the position was that once contentious issues asserted by the complainant or the plaintiffin a case are not challenged and disproved by the evidence adduced by the witnesses ofthe respondent or defendant in rebuttal, then such issues must of necessity be deemed to have been admitted by the respondent or defendant.

**Notwithstanding,** having carefully considered the evidence adduced by the Complainant above in line with the four ingredients constituting torture. 1 find that the Complainant's evidence which was uncontested is on a balance of probabilities sufficient to prove that he was tortured by the government /state agents.

This issue is therefore resolved in the affirmative.

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

Article 119(4) (c) ofthe Constitution of Uganda places a duty on the Attorney General to represent the Government in court or any other legal proceeding to which the Government is a party. In the case of**IWINA VS. ARUA TOWN COUNCIL (1997) HCB 28,** the court that decided the case held as follows:

*"Once it is proved that the servant was an employee ofthe master, there is a presumption that he was in the course ofemployment. The burden then lies on the master to prove the contrary*

1 shall also apply the principle oflaw that was upheld in the case of *MUWONGE VS. ATTORNEY GENERAL (1967) (EA) 17,* in which the presiding judge the Hon. Justice Newbold P. held that:

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

This is why the Attorney General was summoned to answer the allegations against the actions of SPC Misaki Siraji attached to of Mahyoro Police Post (state agent) who beat up the complainant as he was carrying out his official duties. In the instant matter therefore, I find and hold that the Attorney General is vicariously liable for the aforementioned violation ofthe Complainant's right under consideration.

# **Issue 3: Whether C is entitled to any remedies.**

Article 53(2) (b) and(c) ofthe Constitution of Uganda states that:

The commission may, if satisfied that there has been an infringement of a human right or freedom, order payment of compensation; or any other legal remedy or redress. It was found under issue 1 (a) and (b) that C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the two respondents and therefore he deserves compensation to be paid to him.

However, in determining the quantum of damages to be paid to C, I shall categorically take into consideration the following factors.

- a) That the right that was violated was non derogable. - b) That C suffered serious open injuries and inflammation especially on the shoulder, elbows, neck and head and that he also experienced severe pain in the joints. - c) The value ofmoney - d) Relevant case precedents.

The Expert witness **CW3** testified that the Complainant was hit on the head which caused him dizziness and according to his opinion, this could result into clots which can lead to damage. He went ahead to refer the complainant to Ibanda hospital for scans but the medical documents could

not be obtained. He classified the injury as grievous harm. **Grevious harm** has been defined on Police Form 3 as

*"any harm which amounts to a main or dangerous harm or seriously orpermanently injures health or which is likely to injure health or which extends to permanent disfigurement or to any permanent injury to any internal or external organ, membrane or sense ",*

and *"Maim"* is defined to mean:-

*"The destruction ofany external organs, membrane or sense ",*

the definition of "Maim" in the Cambridge International Dictionary of English is defined as:

*"To injure a person so severely that a part oftheir body will not work as it should".* Evidence as adduced by the Complainant indicates that he was beaten severely with a stick on the head causing him headache and dizziness plus tenderness, inflammation and joint pains. All this is corroborated by medical evidence. The acts of the police officer were cruel and inhuman in nature intended to inflict pain and suffering on the complainant. They acts should be condemned in the strongest terms. Justice Odoki in the famous case of **M477E4** *BIRYABALEMA AND OTHERS VS UGANDA TRANSPORT COMPANYSCCA NO.10/93* held that:

*"Courts ought to assess the amount ofdamages taking into account the current value of money in terms ofwhat goods and services it can purchase at present ",*

This precedent encouraged progressive evaluation and management of compensation because in many cases, victims have lost business, time and property which should be viewed as an economic factor.

#### **Decision of the Tribunal on the Merits**

Based on the above, the Tribunal:

i.) Finds that the Respondent has violated Articles 24 and 44 ofthe 1995 Constitution of the Republic of Uganda;

ii. Requests the Republic of Uganda to:

a) Pay adequate compensation to the complainant named in the present Complaint in accordance with the Constitution for the right violated;

c) Train security officers on relevant standards concerning adherence to custodial safeguards and the prohibition oftorture.

**Wherefore,** I deem a figure of Ug. Shs.12, 000,000/= (Uganda Shillings Twelve Million) to be paid to the Complainant by the Respondent as general damages for the violation of his right to protection from torture or cruel, inhuman and degrading treatment or punishment which is an absolute right under Article 44(1) ofthe Constitution of the Republic of Uganda, 1995. This right must be respected by all agents, bodies and organs of government.

I therefore order as follows:

#### **ORDERS:-**

The Complaint is allowed wholly.

- 1. R (Attorney General) is ordered to pay to C a sum of UGX 12,000,000/= (Uganda shillings Twelve million only) for the violation ofhis right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 2. Each party shall bear their own costs. - 3. Either party not satisfied with the Decision ofthe Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date of this decision.

So it is ordered.

DATED AT **FORTPORTAL** ON THIS

**SHIFRAH LUKWAGO PRESIDING COMMISSIONER**