Kalangwa Leo v Attorney General (Complaint UHRC 149 of 2009) [2023] UGHRC 5 (18 April 2023)

Full Case Text

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# THE REPUBLIC OF UGANDA **UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT KAMPALA** COMPLAINT NO. UHRC/ 149/2009

**COMPLAINANT** KALANGWA LEO :::::::::::::::::::::::::

#### **AND**

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

#### **CORAM:**

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

#### **DECISION**

The Complainant brought this complaint alleging that on 4th September, 2009 he was arrested by two uniformed police officers attached to Matugga Police Post. That he was taken to Matugga Police Post where he was detained for 10 days after which he was transferred to Kawempe Police Station on 14th September, 2009. He also stated that while in the cells at Kawempe Police Station, between 7:30 pm and 8:00pm, a police

officer and four other men entered the cell and poured chemicals into his ears and nose which made him become unconscious. The following day at around 10:00am he found himself naked with four men still in the cell. He further alleged that while in police custody, he was beaten using electric wires. On 3rd October, 2009 he was released on police bond.

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The complainant contended that the actions in issue amounted to violation of his rights to personal liberty and protection from torture, cruel, inhuman and degrading treatment or punishment.

The Respondent's representative, Ms. Nabaasa Charity denied liability.

#### Issues.

The issues for determination by the Tribunal are:

- 1. Whether the Respondent's agents violated the Complainant's right to personal liberty. - 2. Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated and if so, who is liable. - 3. Whether the Complainant merits any remedy.

This matter was heard by former Commissioners Hon. Agaba Maguru and Hon. (Rtd.) Justice Gideon Tinyinondi (RIP). The decision of this complaint is therefore based on their record of proceedings.

Eight (8) hearings were held in which the Complainant and his witnesses adduced evidence and were cross examined by the Respondent's representative Ms. Nabaasa Charity. However, the Respondent never presented any defence witnesses nor made any oral or written submissions despite several adjournments being made for that purpose. This however did not take away the complainant's duty to prove his case in accordance with Sections $101(1)$ and $102$ of the Evidence Act Cap 6.

# **Resolution of issues.**

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Whether the respondent's agents violated the complainant's $1.$ right to personal liberty.

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 of the Constitution of the Republic Uganda provides for the protection of personal liberty. Article 23 (1), in particular, provides for circumstances under which a person can be deprived of the right to personal liberty. Sub clause (c) specifically 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 in execution of an order of court or upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, 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.

Protection of person's right to personal liberty was further emphasized in Wintwerp Vs. The Netherlands (1979-80) 2 HRR 387 in which court

stated that no one shall be deprived of his or her liberty save in a limited number of circumstances which must be in accordance with a procedure prescribed by law. In *Makomberedze Vs. Minister of State (security)* [1987] LRC (Const) 504, the High Court of Zimbabwe described the right of the individual to liberty as one of the pillars of freedom in a democratic society.

## CW1, Kalangwa Leo testified that:

"On 4th September, 2009 while I was at Matugga Court where I had been accused that my cattle had eaten peoples' food, I was intercepted by a policeman in uniform. I was handcuffed and taken to Matugga Police Post where I was detained in cells. I spent nine (9) days in detention at Matugga Police Post. I was transferred to Kawempe Police Station where I was detained until 5th October, 2009 when I was released on police bond."

During cross-examination, $CW1$ testified that he was arrested on 4th September 2009 while coming from court where a one Namagembe had lodged a case against him for letting his cattle eat her crops. That he was detained at Matugga Police Post for 9 days and was transferred to Kawempe Police Station between 12th and 14th September 2009. He further stated that at Matugga Police Post, he was never given any document and he spent about 20 to 21 days at Kawempe Police Station.

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CW2, Mateso Ronald, a son to the complainant testified that;

"On a date I could not recall, I was informed by my mother that my father had been arrested and was at Matugga Police Post. The next day, I and my mother went to Matugga with some food for him but we could not access him and food was removed from us and taken to him. My mother kept going to see my father for some time when he was in detention. My father returned after about 27-28 days".

Further CW3, Regina Namayanja, a mother to 4 of the complainant's children, stated that in 2009, "on a date she could not recall, she received a phone call from a "boda-boda" man that the complainant had been arrested. That the following day, she went to Matugga Police Post and was informed that the complainant had been transferred to Kawempe Police Station".

### She added as follows;

"I proceeded to Kawempe Police Station with food but I was not allowed to see him but instead food was removed from me and taken to him, and containers returned later. I kept taking food for the complainant for about one month".

The Complainant's testimony was corroborated by the evidence of CW2&3 who went to visit him in detention and took for him food. They

both testified that the complainant was in detention for a period of 27-28 days.

The release on bond form from Kawempe Police Station which was tendered in evidence as $Exhibit$ Cx1 reveals that the complainant was charged with the offence of suspected possession of firearms and was released on bond on the 3rd of October, 2009. Among the people who stood surety for him was CW3, Namayanja Regina who is the same person who took food for him throughout detention.

The fact that the complainant was arrested and detained was corroborated by the testimonies of his son and wife. They both stated that the complainant returned home after about 27 to 28 days. Their statements are in line with the release on bond form since the complainant was released on the 3rd October, 2009 which is about a month from 4th September 2009.

The above evidence was not disputed by the respondent as he did not adduce any evidence or file written submissions to rebut the remained evidence evidence. The complainant's complainant's unchallenged. It was presumed that the Attorney General waived his right In the case of George Asiimwe Vs. Attorney to defend the matter. General HCCCS No. 481/1997, the Plaintiff's case closed and the defendant offered no evidence. Justice Paul Mugamba held that the

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Plaintiff's evidence was not controverted and had to be accepted as the truth.

From the evidence adduced, the tribunal hereby concludes that the Complainant was detained in Kawempe Police Station for one month which amounted to a violation of his right to personal liberty.

This issue is thus resolved in the affirmative.

Whether the Complainant's right to freedom from torture or $2.$ cruel, inhuman or degrading treatment was violated, and if so, who is liable?

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) provides that;

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

Article 5 of the African Charter on Human and Peoples Rights (ACHPR) of 1986 provides that;

"Every individual shall have the right to the respect of the dignity" inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited."

Article 24 of the 1995 Constitution of the Republic of Uganda also prohibits the violation of an individual's right of freedom from torture or cruel, inhuman or degrading treatment or punishment. It specifically provides that;

"No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment of punishment."

This same right is absolute under Article 44 (a) of the Constitution.

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".*

In the case of *Fred Tumuramye Vs. Gerald Bwete -And- 10 Others*, Complaint No. UHRC 264/1999, it was held that the major elements of the UNCAT definition of torture were.

- That the act inflicts severe suffering or pain on the victim, whether physical or mental. - That the act is intentionally inflicted irrespective of whether it is $\bullet$ direct or indirect. - That the act is carried out for the purpose such as obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind; and - That the act is carried out by or with the instigation or with the consent or with the acquiescence of a public official or any other person acting in official capacity.

## The complainant testified as follows;

"In the night, four men with a police officer entered the cell and they poured on me a yellowish powder and splashed it on the wall. I felt I could not breathe well and I was suffocating. The following day, I was taken out of the cells and taken upstairs in the office where I was ordered to produce a gun. I denied knowledge of having a gun and they threatened

to kill me if I did not reveal where the gun was. He had electric cables and he ordered me to lie down and I was beaten for about 10 minutes before being taken back to the cells. The next morning, I was again taken upstairs and the same man again demanded for the gun. He again caned me and also hit my legs. I started bleeding in the knees and on seeing this, he returned me to the cells. On 27th September 2009, a female police officer took me out of the cells upstairs. I found the same man who had been previously beating me. He again demanded for the gun and the whereabouts of the person who had been killed and buried. I again denied what he was saying and I was ordered to lie down. He got an electric cable and beat me. When he saw blood flowing, he took me back to the cells. I was next called out of the cell on 30th September 2009 and still asked about the gun and when I denied having any knowledge, I was beaten and later taken to the cells".

CW1 further testified that on $2^{nd}$ October 2009, he was again called out of the cells and his statement recorded. That the next day, a man dressed in civilian clothes went to the cells with a police officer and took him upstairs. That they still demanded for the gun but he denied knowledge of it. Because of that, he was hit with a stick on the legs, interrogated and taken back to the cells.

During cross examination, the $CW1$ testified that he was arrested from court on 4th September 2009 and detained in police custody. That the men who poured powder on him were fellow detainees. That while he was being beaten, they were asking him about the whereabouts of a gun. He also confirmed that he was beaten with electric cables in an office in Kawempe and that the people who used to take him upstairs were in civilian clothes but the police officer is the one who used to open for him.

The tribunal notes that $CW2\&CW3$ never testified in regard to the torture of the complainant since they were never allowed access to the victim while in detention. It is upon cross examination of $CW3$ where she makes a mention of the state the complainant was in when he returned. She stated that the complainant was thin and had wounds all over the body.

CW4, Dr. Muwa Paul the expert witness testified that he is a medical doctor who holds an MBChB attained in 2003, working with African Centre for Treatment and Rehabilitation of Torture victims (ACTV) and CORSU Hospital Entebbe. He stated that the complainant, according to the medical report dated 1st June, 2011 went to ACTV with complaints of general weakness, chest and joint pains, loss of appetite, nightmares and insomnia. That it followed the incident where he was beaten by a police officer using a baton and electric wires.

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## He further testified that;

"When I examined the complainant, he had a scar on the back of his right elbow measuring 1x1cm. Another scar was on the left knee and another above his right ankle. The victim also had epigastric tenderness in his stomach and the other systems were found to be normal. I diagnosed him with soft tissue injury, post-traumatic stress disorder, anxiety disorder and gastritis".

The witness testified that the conclusion he made at that time was that the complainant continued to suffer from symptoms resulting from physical and psychological torture that he was subjected to while in police custody. That he lived in fear of re-arrest and had anxiety about his predicament. He estimated that his permanent disability was at 10%. He clarified that soft tissue injury means injury to the body that excludes the bones and gastritis is commonly called ulcers which is a symptom of epigastric pain. The medical report from ACTV was tendered in and marked *EXC2*.

The Respondent's counsel never cross-examined the expert witness despite several adjournments being made for that purpose. He also never rebutted the evidence adduced either through calling witnesses or making submissions.

On this premise, the Tribunal concludes that indeed the Complainant was subjected to severe pain and suffering, which was intentionally inflicted on him by police officers while asking him about the whereabouts of a gun. The police officers were state agents who acted in line of their duties. The Attorney General is held vicariously liable for the violation of the right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

## Whether the Complainant merits any remedy $\overline{3}$

The Constitution of the Republic of Uganda under Article 53(2) (b) and $(c)$ provides that;

"The Commission may, if satisfied that there has been an infringement of a human right or freedom, order; the payment of *compensation; or any other legal remedy or redress.*"

In respect to the violation of Kalangwa's right to personal liberty, from the Complainant's testimony, the tribunal finds that he was unlawfully detained for 28 days and considers UGX 2,000,000/= (Two Million **Uganda Shillings)** as adequate compensation for the violation of the complainant's right to personal liberty.

The tribunal considers that the actions of the respondent's agent were unjustifiable, and that the right to freedom from torture is an absolute right under Article 44 (a) of the Constitution. The tribunal also takes into consideration the fact that 10 percent permanent disability was caused to the complainant, according to the expert witness,

In that regard, compensation of $UGX$ 7,000,000/= (Seven Million Uganda Shillings) is adequate for the violation of Kalangwa Leo's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

## **ORDER**

- The Complaint is allowed. 1. - The Respondent is ordered to pay to the complainant a sum of UGX $2.$ $2,000,000/$ = (Two Million Uganda Shillings) as compensation for his right to personal liberty. - The Respondent is ordered to pay to the complainant a sum of UGX $3.$ 7,000,000/= (Seven Million Uganda Shillings) as compensation for his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - The said total sum of **UGX 9,000,000/=** (Nine Million Shillings) $4.$ shall carry interest at 5% from the date of this decision until payment in full. - Each party shall bear their own costs. $5.$

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

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DATED at Kampala this .... $18^{11}$ day of ..... April 4....................................

$\cdots$ HON: MARIAM WANGADYA **CHAIRPERSON**

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

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HON: OMARA APITTA LAMEX **MEMBER**

HON: SHIFRAH LUKWAGO **MEMBER**