Kapel Bukuny v Attorney General (UHRC/MRT/19/2009) [2016] UGHRC 29 (4 May 2016)


# **THE REPUBLIC OF UGANDA**

# **THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

# **HOLDEN AT MOROTO**

# **COMPLAINT NO: UHRC/MRT/19/2009**

## **KAPEL BUKUNY ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

#### **And**

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

#### **DECISION**

Kapel Bukuny lodged his complaint alleging that on 31st January 2009, UPDF soldiers from Napumpum army barracks who had gone for a cordon and search operation in Napumpum Trading Centre arrested him together with several other people and took them to Napumpum army barracks. That on their way, the soldiers kicked and knocked them with gun butts. That four of them were put aside and beaten severely until three confessed that they had the guns. The soldiers continued beating him on his toes, kicked his chest until he bled from his mouth and nose and also walked on his body while he was lying down until when he became unconscious. That as a result of that torture, he feels pain around his heart and kidneys and finds difficulty in sleeping.

The Complainant sought compensation for the violation of his right of freedom from torture or cruel, inhuman degrading treatment or punishment.

The Respondent denied the allegations and opted to put up a defence.

#### **Issues:**

The Tribunal was expected to decide on the following threeissues of contention:

- **1. Whether the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.** - **2. Whether the Attorney General (Respondent) is liable for the violations.**


#### 3. Whether the Complainant is entitled to any remedies.

#### Issue No. 1: Whether the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

Human Rights laws at International, Regional and National levels all totally prohibit the violation of peoples' right to freedom from torture or cruel, inhuman or degrading treatment or punishment. Such absolute prohibition is provided for under Article 5 of the Universal Declaration of Human Rights (UDHR) of 1948, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1996, and by the entire Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in short, known as the CAT) of 1984, as well as Article 5 of the African Charter on Human and Peoples' Rights (ACHPR) of 1981; all the four instruments have been signed and ratified by Uganda thus, making their provisions binding. The CAT states most clearly this total prohibition of violation of the aforementioned right. It clarifies that the right under consideration must never be violated under even exceptional circumstances whatsoever, whether it is circumstances of a state of war or a threat of war, internal political instability or any other public emergency.

The Constitution of Uganda of 1995, under Article 24 also totally prohibits the same violation under consideration now. Further still, under Article 44 it provides for total prohibition of derogation of the same right thus, placing this right among the four rights that are non-derogable in this country.

The Convention Against Torture (CAT) and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 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 discretion 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"

The words "cruel, inhuman and degrading treatment or punishment' are added to extend to the widest possible protection against abuse whether physical or mental. The constitution of the Republic of Uganda under article 24 prohibits the violation of an individual's right to freedom from torture, cruel, inhuman and degrading treatment or

punishment. It was also emphasized in **ATTORNEY GENERAL VS SALVATORI ABUKI Constitutional Appeal No. 1/1998** that the freedoms enshrined under article 44 (a) of the constitution are non derogable which include freedom from torture, cruel, inhuman and degrading treatment or punishment.

The aforementioned CAT definition comprises of four important ingredients or contours, which also inform the International conceptualization of torture. These are:

- Whether the action(s) of the alleged culprit(s) caused the affected victim(s) severe pain and suffering, whether physical or mental. - Whether the pain and suffering caused by the action(s) of the culprit(s) was intentionally inflicted on the victim(s). - Whether the purpose of the action(s) was to obtain information or a confession, or for punishment, intimidation or coercion, or for any reason based on discriminating the affected victim(s); and - Whether the action(s) that has/have inflicted pain and suffering was or were carried out by, or at the instigation of, or with the consent or acquiescence of, a public official or another person acting in an official capacity.

<sup>I</sup> shall therefore look for proof of these four ingredients before making my decision.

He left his village on 30th of January 2009, while carrying grass to take to his grandmother in Napumpum using donkeys where he stayed overnight. That at night, the soldiers surrounded the village and ordered the residents to come out as they screened all according to ages.

The soldiers selected 7 of them and took them to Napumpum barracks and on the way, they were being beaten with batons and were told to produce guns, when they reached the barracks, they were put inside the uniport until the following morning at about 11.00 a.m., they called them one by one to be tortured through beating, kicking on the back, which lasted for about 3 hours and that he lost his consciousness during the beating, and only regained it when he was being carried to the car.he bled through the nostrils and the mouth. He was taken to Napumpum Health Centre where he was treated for 2 days before being referred to Kotido Health Centre. That he took about 6 months in Matany before he was discharged. Later he went to Karawat Health Centre for reviews. He did not have evidence of medical forms of Matany since the children had scattered them. That he reported to this case of torture to police, but police did not arrest the persons who tortured them. He further stated that he had ever had a gun but voluntarily surrendered it because he waspromised iron sheets which he did not get.


While being cross examined, the complainant pointed out that the people he was arrested with were from different manyattas/villages while he was a visitor in that village, having taken grass to his grandparents in Napumpum, but he knew the people he was arrested with. Only one was from that village and the rest were from other villages. That he was beaten from outside the barracks by the soldiers and he became unconscious.

The Complainant's testimony was corroborated by the witness Lorino John who stated that on31st January 2009, the soldiers came to Napumpum village, ordered the villagers out of their houses and were ordered to sit out. While others were being released only 7 of themwere taken to the barracks while being beaten with sandals on their bodies until theyreached the barracks. At the barracks, they were put inside the uniport until the following morning at 11:00 a.m. whenthey were being called out, one by one for beating whilebeing asked for guns. Three of them accepted being in possession of guns and hence taken to pick the guns and they were released.

Kapel Bukuny was badly beaten because there was an allegation of his son having an illegal gun. After torturing him, at about 6 p.m. they pushed him back to the house, later in the night, he started groaning like somebody dying. They called the soldiersin vain until the following morning when the 1.0 came and saw what had happened and called for the army vehicle to take Kapel Bukuny to hospital. They were asked to cany him to the car, and one Amin was asked to go along with Kapel Bukuny to hospital together with the soldierTeko who had tortured him while he (John) did not go along, but that later in the day, when he was released, he followed up to find out what had happened to Kapel Bukuny and when he reached the health centre, he was told that he had been referred to Kotido Health Center from Napumpum. When Kapel Bukuny was taken to Hospital, he was unconscious.

The complainant's second witness Moding Maria stated that Kapel Bukuny was taking grass to his grandmother in Napumpum, soldiers arrested him and beat him, took him to the barracks where he was beaten again until he got unconscious. That the soldiers put him in their vehicle and took him to Matany Hospital for three days and he could neither drink nor eat. That when the complainant regained his consciousness, she reported the matter to police. That they stayed at the health unit for two months and she was taking care of him.

This witness was cross examined by the respondent and she pointed out the complainant Kapel Bukuny was her son , she was not present when he was being beaten but saw him in the barracks when she had taken for him food although she saw him but were not allowed to talk. That she sounded an alarm for need of a vehicle to take the complainant to hospital since he was in bad condition and the car was given to them, she was taking care of the patient, he was unconscious for three days without eating.

To support his testimony further, the Complainant tendered in a certified medical report from Napumpum Health Centre II which was admitted as the Complainant's first exhibit and interpreted by the expert witness, Loyoro Simon. He testified that he was a farmer and also working in the medical department as a nursing assistant attached to Napumpum Health Centre II. He had a certificate in medicine and nursing from Abim Hospital of 2001. He interpreted the medical form dated 6th February 2009 of Kapel Bukuny who sought treatment from Napumpum Health Centre II. He stated that the patient Kapel Bukuny at the time of examination had been severely beaten he was unconscious hence could not talk or walk. The general observation/condition of the patient was that he was very sick and diagnosedwith severe disease with trauma on the right kidney. He treatedhim with x-pen for start and referred the patient to Kotido Health Centre IV and the patient later came back on 16/02/09 where he examined him and found he had improved though he was weak,they continued with the treatment he was given from Kotido Health Centre IV.

During cross examination, expert witness Loyoro Simon stated that Kapel Bukuny, A (the complainant) was very sick and not able to sit when he was brought to Napumpum Health Centre II. That he did not have any exposed wounds not even bruises and was given 2mg of x-pen treating anti-bacterial diseases since he was unconscious. Further, that the patient was referred to Kotido Health Center IV but later returned to Napumpum Health Centre II for health management.

The expert witness was re examined and stated that Bukuny was treated of Post trauma and severe disease which could be pneumonia and respiratory tract according to the forms from Kotido which unfortunately, the complainant says the wife lost.

Accordingly, all <sup>I</sup> have now to consider are the four ingredients of torture that <sup>I</sup> cited earlier on, to determine whether they have been proved.

The Complainant stated that the soldiers selected 7 of them and took them to Napumpum barracks and on the way, they were being beaten with battons and the following morning at about 11.00 a.m., they called them one by one to be tortured through beating, kicking on the back, he bled through the nostrils and the mouth. And this lasted for over three hoursand he lost his consciousness. This led to severe pain to the complainant. This was confirmed by the medical report interpreted by the expert witness

This testimony of the complainant is corroborated by his witness one Lorino John who was arrested with him and saw all the accounts of events as they unfolded themselves in the barracks and stated helping Kapelbukuny to the vehicle that took him to the Health Centre and although he did not go with him, he later followed him when he was released and although the testimony of the second witness Moding Maria was largely hearsay, she found the complainant unconscious when she took for him food, this made her to sound an alarm to the authority who eventually responded by providing a vehicle that took the complainant to the health centre.


The evidence of the three witness was confirmed by the expert witness who stated that Kapel bukuny was brought to the health centre Napumpum when he was unconscious and in a dangerous condition.

This evidence points to the fact that the actions of the soldierscaused the Complainant severe physical pain and suffering, and it was intentionally inflicted on to him, he was called out of the cells in the barracks, taken out and severely beaten and the reason for this was that they wanted a confession from him for possessing a gun and these were carried out by UPDF soldiers who are public officials and where acting in their official capacity. The Complainant was arrested and taken to the barracks in good health and so the UPDF should be answerable.

This principle was upheld in the case of **AKSOY vs. TURKEY,** (1195) 21 EA 573, in which the European Court gave judgment holding as follows:

"Where an individual is taken into Police custody in goodhealth but is found to be injured on releaseit is incumbent on the Police authority to provide aplausible explanation as to the cause the injury, failing which a clear issue arises."

The same principle was also upheld in the case of **VELIKOVA vs BULGARIA,** Application No. 41488, in which court held that: "When an individual is taken into custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading to his death,failing which the authorities must be held responsible."

The evidence provided by the complainant and his witnesses is so consisted and it was largely unchallenged by the responded

WHEREOF, on a balance of probability, the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by UPDF officers of Napumpum barracks, as they carried out their official duty of cordon and search in service of the Government of Uganda.

## **Issue No. 2: Whether the Attorney General (Respondent) is liable for the violations**

Accordingly, in respect to the issue of liability, **Article 119 of the Constitution** of Uganda provides for the functions of the Attorney General to include among others, to represent the Government of Uganda in courts or any other legal proceedings to which the Government is a party.

The UPDF officers of Napumpum barracks, who violated the Complainant's right, carried out the actions while in their official duties. Furthermore, since the Respondent never tendered in any evidence to prove the contrary, in the case of **MUWONGE vs ATTORNEY GENERAL** (1967), (EA) 17 "that once the actions or

omissions of the servant have been proved to have been part of the process of the servant's duty for which he was employed, then they render the master liable, even though the same actions or omissions were carried out contrary to the orders or instructions of the master, and even if the servant acted deliberately, wantonly, criminally, negligently, or contrary to the specific instructions or orders of the master, or for his or her own benefit, gain or advantage; as long as what the servant carried out or did was merely a manner of carrying out or doing what that servant was or is employed to do or to carry out."

For this reason, the Attorney General was rightly identified and summoned as the Respondent in this case.

It therefore follows that the Attorney General is vicariously liable for the violation of the Complainant's right to freedom from torture, cruel, inhuman and degrading treatment or punishment as already established and ruled in the foregoing discussed issue.

## **Issue No. 3: Whether the Complainant is entitled to any remedies.**

Article 50 (1) of the Constitution provides for effective remedies to be ordered by competent national tribunals for victims whose fundamental rights granted to them by the same Constitution have been violated. In addition to this, under Article 53 (2) the Constitution also gives powers to the Uganda Human Rights Commission, and therefore to this Tribunal, to order payment of compensation or any other remedy or redress, where it has been satisfied that there has been an infringement on anybody's human right or freedom. <sup>I</sup> shall therefore now invoke these powers.

In respect to violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment, the Complainant has proved to the satisfaction of the Tribunal that on a balanceof probability that his right of freedom from torture, cruel and inhuman treatment or punishment was violated by the Respondent's agents. He is therefore entitled to recover compensation from the Respondent by way of damages.

In assessing damages in this matter <sup>I</sup> will take into consideration the fact that freedom from torture is a non-derogable freedom, and therefore its violation is always a deliberate abuse must be considered equally to be a deliberate breach of a fundamental right guaranteed absolutely by the Constitution.

In the case of **KISEMBO MILTON vs. ATTORNEY GENERAL, UHRC/FPT/005/2004** in which the Complainant was beaten all over the body, pushed against a wall and punched heavily by Policemen at Bundibugyo Police Station, the Presiding Commissioner Constantine Karusoke awarded him Shs.3,000,000/= for the violation of his right of freedom from torture, cruel, inhuman and degrading acts.


'■ <sup>I</sup> am therefore ordering as follows:

#### **ORDER**

- 1. The complaint is allowed. - 2. The Respondent to pay to the sum of Uganda Shillings 3,000,000/- as general damages for the violation of the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. Interest at the rate of 10% per annum to be paid on the total amount of Shs.3,000,000/= (Shillings three million only) calculated from the date of this decision until payment in full. - 4. Each party to meet their own costs. - 5. Either party may appeal to the High Court of Uganda within thirty (30) days from the date of this decision if not satisfied with the decision of this Tribunal.

# **Dated at Moroto on this .^P....day of........... ...................................2016**

**Signed by:**

**AKURUT VIOLET ADOME**

#### **PRESIDING COMMISSIONER**