Kato v Attorney General (compliant no.39/2009) [2017] UGHRC 23 (14 November 2017)

Full Case Text

![](_page_0_Picture_0.jpeg)

# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT FORT PORTAL COMPLAINT NO: UHRC/FTP/39/2009**

**KATO CLOVICE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::COMPLAINANT**

### **AND**

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

## **(BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA) DECISION**

The Complainant(C) alleges that on a date he does not recall but in December 2009 he was arrested by 6 (six) Police Officers attached to Karugutu Police Post on allegations of insulting them. That the said Police Officers beat him severely on the back, amidst kicks for about 20 minutes. That he was then tied with ropes by the said Police Officers and taken to Karugutu Police Post where he was detained for two days. That he was later transferred to Bundibugyo Police Station where he was further detained for one week and then released on police bond.

Counsel for the Respondent (RC), Asiimwe Phiona Bamanya denied liability and opted to defend the matter.

The issues to be determined by the Tribunal are:

1. Whether the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.

- 2. Whether the Complainant's right to personal liberty was violated? - 3. Whether the Respondent is vicariously liable? - 4. Whether the Complainant is entitled to any remedies?

Before resolving the above issues, it should be noted that the Complainant bears the burden to prove his case to the satisfaction of the tribunal. This is in accordance with **Section 101 (1) of the Evidence Act,** Cap. 6 Laws of Uganda which provides that:

*"Whoever desires any court to give judgment as to any legal right or liability over the existence offacts which he or she asserts must prove that thosefacts exist. "*

And under **Section 102 of the Evidence Act** (Supra) which also states that:

*"The burden ofproofin a suit or proceedings lies on the person who wouldfail ifno evidence at all were given on either side. "*

I now turn to the issues.

### **Issue 1: Whether the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.**

**C testified** that in December 2009 while at his shop in Karugutu at 5:00pm, there came five policemen in police uniform, including Masasi, Bayaya, Julius and two others and arrested a 16 years old boy called Tusiime. They informed C that he was needed but when he refused to go with them, the police officers immediately started beating him with iron bars, electric wires and gun butts on his back, ribs and the head. That three of the Police Officers beat him while the other two were holding his hands. He further testified that people like Joel Champion who were present asked the officers why they were beating him but they continued beating him up to Karugutu Police Post. That when he was transferred to Bundibugyo Police Station, and after his release, he sought treatment from Karugutu Health Centre.

**Upon cross examination** by RC Asiimwe Fiona Bamanya, C confirmed that the incident happened while he was at work at Karugutu at around 3:00 p.m. That he was beaten on the back with an electric cable and an iron bar on the head and was beaten all the way after his arrest and

also at the Police Postn. That the distance from his shop to the Police Post was about 100 meters. That after about two to three days after his release, he went for treatment.

**During re-examination, C** explained that he did not have a watch but he was arrested between 3:00 p.m. and 5:00 p.m and that he was telling the truth ofwhat happened to him.

C's witness **Champion Joel (CW1)** testified that he knew Kato because he worked with him at Karugutu. That one day in December, 2009 while at Karugutu Town Council at around 12.00 noon, he was riding a boda boda and C was at his shop at Karugutu Town Council, he saw about five police officers in police uniform, walking with electric cables and one had an iron bar. There was another man whom they started beating and he died. They then took another boy and started to also beat him and when C asked the police officers why they were beating the boy, they came back and started beating him too. They beat C with an iron bar on the head and he started bleeding. They also beat him with electric cables at the back and his buttocks.

After one week someone stood surety for him and he was released and he had injuries on the head and at the back. That he got a medical form for him from Karugutu and he got treatment from Karugutu Health Centre. That he used to check on him to see his condition.

**CW1 was cross examined** by RC Asiimwe Fiona Bamanya and he stated that he used to work with C at the same boda boda stage but C also used to sale spare parts. He confirmed seeing C being beaten by the Police men on the back using electric wires and added that one ofthe Police men had an iron bar but he did not know whether or not he used it to beat. They beat C rapidly for about one minute and then took him to Karugutu Police Post. The Police men beat him from where they arrested him and also on the way to the Police Post, they slapped him. That Mbayaya is one of those who beat C but he did not know the others. CW1 added that he went for lunch, and when he returned to the police station, he found when C was being beaten again.

**CW2, Asiimwe Emmanuel** testified that he knew C since both of them used to be residents of the same village. That in December 2009 on a date he could not remember, while he was seated on the veranda near C's shop at Karugutu Town in Ntoroko District at about 1:00pm, he saw some people coming to arrest C. That the people who had come to arrest him were 5 police officers from Karugutu Police Post and that they all began beating C using electric wires and iron bars. Two of them were holding electric wires and they were wearing khaki police uniform,

while the other two were holding iron bars. They hit him on his head and it was oozing out blood. They beat him for about 2 minutes but he did not hear what they were telling him. That C had blood all over his body and he also had a wound on his head. That they went on beating him up to the police post. He saw him at his home after he had been released but could not recall after what time because it was long time ago and C told him he was somehow okay.

**Upon cross examination by RC Kawalya Ronald, CW2** started that when the police began beating C, the people around did not do anything as they had nothing to do. He added that it was strange because he had never seen police officers beat people they arrest. That he did not know what they were telling C as they beat him for about 2 minutes. That he could not remember the names of other people around the shops since many years had passed. He testified further that he took interest in the matter since he was there as an eye witness and he decided to come and testify. He did not follow up to police post.

The right to freedom from torture is protected by national, regional and international human right instruments.

The **Universal Declaration of Human Rights (UDIIR), 1948** under Article 5 provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, **Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1996** absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

The **African Charter on Human and Peoples' Rights (ACHPR) 1981** under **Article 5** also reiterates the total prohibition of violation ofthe same aforementioned right.

The **Constitution of the Republic of Uganda 1995** under **Article 24** absolutely prohibits subjection of anyone to any form of torture or cruel, inhuman and degrading treatment or punishment. This right is provided for as a non derrogable right under **Article 44.**

The definition of torture is provided by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, which Convention Uganda ratified.

**Article 1** there ofstates 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 ofhaving committed, or intimidating or coercing him or a third person, orfor any reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence ofa 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. "*

The definition in **Article 1** of the UNCAT has been applied in Uganda in the matter of **Fred Tumuramye Vs Gerald Bwete and Others UHRC NO 264/1999,** where Commissioner Aliro Omara spelt out the elements oftorture to include;

- a) An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person. - b) For a purpose such as obtaining information, or a confession, punishment, intimidation, coercion or for any reason based on discrimination. - c) The act 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.

I will therefore resolve this issue in light ofthe ingredients oftorture above.

C testified that uniformed police officers from Karugutu Police Post beat him on the head and back using wire cables and iron bars. That he sustained injuries on the head and back and in fact showed the scars on the back to the tribunal. That he was beaten even on their way to the Station and while at the Station. He went to Karugutu Health Center IV for treatment after he was released. This clearly indicates that C suffered severe pain and suffering as a result of the beatings that caused him injuries on the head, a delicate part ofthe body.

According to C's testimony, the police officers asked him to go to the police post and when he asked why he was needed and refused to leave his shop, they started to beat him. This gives me the reason why C was beaten, because he did not follow the orders of the police officers. The beating was an intentionally done as a form ofpunishment; to coerce C to go to the police post.

The people who carried out the acts were police officers from Karugutu Police Post, they were uniformed and one had a gun. C went ahead to identify some ofthe perpetrators who were known to him.

C's evidence was corroborated by the testimonies of both CW1 and CW2 who were present at the scene of the crime. They all testified that police officers from Karugutu beat up C and caused him bleeding. However, C did not produce any medical evidence that would be useful in proving the gravity of the effects of the torture **(see Fred Kainamura and Others vs Attorney General and Others, 1914, V KARL 92).** A victim of assault can discharge his or her burden of proof of the allegation of assault simply by adducing cogent evidence through his or her own testimony and preferably, together with the evidence adduced by his or her own witnesses, to prove that the assault in one form or another did actually take place.

RC did not call any defence witnesses to challenge C's evidence even after C and his witnesses identified the police officers who tortured him. I will therefore apply the principle in the case of **George Asiimwe vs Attorney General, Kampala HCCS No.48/97** where the plaintiff closed his case and the defendant offered no defence, Mugamba, J. held that the plaintiffs evidence was not controverted and had to be accepted as the truth.

Therefore I find on a balance of probability that C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated, contrary to Articles 24 and 44 of the Constitution of Uganda 1995.

#### **Issue 2: Whether C's right to personal liberty was violated**

**C testified** that in December 2009 at around 5.00 p.m., while at his shop in Karugutu, five policemen including Masasi, Bayaya, Julius and others arrested him and took him to Karugutu Police Post where he was then detained for two days. He was then transferred to Bundibugyo Police Station where he was detained for one week before being released on police bond. He was not given any document upon released.

During cross examination, he confirmed that the incident happened while he was at work at Karugutu in his shop at around 3:00 p.m. Two LDUs and three police officers in uniform arrested him without telling him the reason. That he was taken to Karugutu Police Post where he spent three days but he did not record any statement. After the three days he was taken to Bundibugyo Police Station where he spent one week. He emphasized that the places where he was detained were all Police Stations and that he was telling the truth.

C's statement is supported by the statement of **Champion Joel (CW1)** who saw uniformed police officers arrest C and take him to Karugutu Police Post (was a police post at that time but now it is a Police Station.) and when he followed him up at Karugutu Police Post after three days, he was informed that C had been transferred to Bundibugyo Police Station.

The above evidence adduced before the tribunal points to the violation of the Complainant's right to personal liberty which is protected by Article 23 of the Constitution of the Republic of Uganda 1995. This right is also protected by International and Regional Human Rights Instruments to which Uganda is signatory; such as, the International Covenant on Civil and Political Rights (ICCPR) 1976 whose Article 9 prohibits arbitrary arrest and detention, or any limitation on individuals' right to personal liberty, unless it is done on grounds and procedures established by law. In addition, Article 6 of the African Charter on Human and Peoples' Rights (ACHPR) 1997 provides that "every individual has 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 law".

Article 23(1) (c) of the Constitution however allows limitation to the right to personal liberty in execution of a court order or upon reasonable suspicion that a person has committed a criminal offence. This is reiterated under Section 23(1) of the Police Act Cap 303 as amended, which provides that a police officer may, without a court order or warrant, arrest a person if he has reasonable cause to suspect that the person has committed or is about to commit an arrestable offence.

Reasonable and probable cause was defined by Lady Justice Mpagi Bhigeine in **Steven Semugona Vs Madix Mafuge & 5 Others [1994] 11 KALR 108** as: "a honest belief in the guilt of the accused based upon full Conviction founded upon reasonable grounds for the existence of a state of circumstances which assuming them to be true would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person was probably guilty ofthe crime implied."

In the case before me, C was arrested by the police officers because he asked them why they were beating a 16 year old. He was not told the reason for his arrest although he asked them to do so. When he refused to go with the police, they beat him up and forced him to go to Karugutu Police post where he was detained without making a statement.

The above allegations of C point to the fact that the police wrongfully arrested him since he had not committed any offence nor was he about to commit an offence.

### **Unlawful detention**

Even if C's arrest was to be justifiable, **Article 23(4) (b)** of the Constitution provides among others, that a person arrested and detained 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 or her arrest.

In the present case, the oral evidence ofthe Complainant and his witnesses that C was in detention at Karugutu Police Post then transferred to Bundibugyo Police Station is supported by documentary evidence of a certified copy of a Lock up Register from Bundibugyo Police Station. The exhibit speaks for itself and the Respondent did not challenge it, and when considered together with the oral evidence before the Tribunal, shows that the Complainant was detained at Bundibugyo Police Station from 4th December 2009 to 8h December 2009 and that he had been transferred from Karugutu Police Post.

In cases based on unlawful detention, the Complainant's burden is discharged if he proves that he was arrested or detained. He does not need to prove that the detention was unlawful or malicious. The onuses then shifts to the Respondent to justify the arrest or detention **(see Safati Kiwanuka vs. Kamuli District Administration (1994 - 95) HCB 74).**

There is no justification produced before this Tribunal by the Respondent for the illegal detention of the Complainant. C has proved that he was arrested illegally by police officers from Karugutu Police Post since he was arrested for no existing offence and the lock up register has also proved his unlawful detention at Bundibugyo Police Station. He also proved that he was never taken to court.

Technically by virtue of the provisions of Article 23 (4) (b) of the 1995 Constitution of the Republic of Uganda which are mandatory, the initial two (2) days of detention at Karugutu Police Post that were lawful but the latter five (5) days of detention at Bundibugyo Police Station were unlawful.

On a balance of probability therefore, C's right to personal liberty was violated by the Respondent contrary to Article 23 ofthe Constitution of Uganda 1995.

### **Issue 3: Whether the Respondent (Attorney General) is liable?**

**Article 119** ofthe Constitution of Uganda provides that the functions ofthe Attorney General shall include among others, to represent the Government of Uganda in Courts or any other legal proceedings to which Government is a party.

The law on vicarious liability as enunciated in **Muwonge vs Attorney General (167) EA 17** is that "any action or omission that is carried out by a servant while performing his or her official duties, or while he or she is in his or her employment, is considered to be part and parcel ofthe servants employment and it renders the servants' master liable for the action or omission. Even if the act or omission was carried out contrary to the orders or instructions of the master; or even when the servant acted deliberately, wantonly, negligently or even criminally or contrary to specific instructions given to him or her by his or her master or superiors; or indeed acted for his or her own benefit, gain or advantage, as long as what the servant did or omitted was merely a manner of carrying out what that servant was or is employed to carry out, then the master is liable."

For the doctrine of vicarious liability to apply, there must be three essential ingredients; there must be a relationship of employer and employee, the toil must be committed by the employee and, in the course of the employee's employment (see **Thunderbolt Technical Services vs. Apcdu Joseph & KK Security (U) Limited IICCS 340 Of 2009.**

There is sufficient evidence to prove that the police officers attached to Karugutu Police Post who arrested and tortured C did so in the course of their employment. They were ably identified by C and his eye witnesses and they took him to Karugutu Police Post where he was detained. In addition, the officers of Bundibughyo Police Station also detained C who had been transferred from Karugutu and this is pail of their official duties of detaining suspects. However, his detention of five days was illegal. They should have released him on bond earlier or produced him before court.

Relying on the principle of vicarious liability as laid out in the Muwonge case and I hold that the Respondent is vicariously liable for their actions.

### **Issue 4: Whether there is any remedy available to the Complainant**

Article 53 (2) of the Constitution empowers the Uganda Human Rights Commission to order payment of compensation or any remedy or redress, once satisfied that there has been an infringement on anybody's human right or freedom. I find that the Complainant is entitled to a remedy in form of compensation.

I will take into consideration the legal principle that the basic purpose of damages is to put the victim in the position he would have been had he not suffered the wrong *[Dr. Denis Lwamafa* **-v-***Attorney General C/S No.79/1983; George Paul Enienyu & Another* **-v-** *Attorney General 109/1994 VKALR].*

I am also taking into account the important principle that was upheld in the case of MATIYA BYABALEMA AND OTHERS vs UGANDA TRANSPORT COMPANY, SCCA 10/193, in which His Lordship Justice Odoki, JSC held that courts ought to assess the amount of damages taking into account the current value of the money in terms of what goods and services it can purchase at present.

# a) Remedy for the violation of C's right to freedom form torture or cruel, inhuman or degrading treatment or punishment

In **Isabirye Kiwule V Attorney General, Complaint UIIRC/J/35/2003, UHRR[2003-2007]** Commissioner J. M Aliro Omara laid down points to consider when granting compensation for breach of a Complainant's freedom from torture or cruel, inhuman or degrading treatment or punishment as:-

- a) The nature oftorture and injuries sustained by the Complainant and the impact on his life if any - b) The fact that this right is absolute as stipulated in Article 44 ofthe Constitution. - c) The innocence ofthe complainant - d) Where possible, previous awards in cases or complaints of a similar nature.

From the evaluation of evidence in issue 1 above, C suffered injuries on his head and back due to the beating he was subjected to by the police officers. He was beaten with iron bars, electric wires and gun butts on his back, ribs and the head. These caused him severe pain and suffering physically and mentally since he had not committed any offence and was never charged in court. His right that was abused is a non derogable right under Article 44 ofthe Constitution.

This was of course contravening **Article 221 of the Constitution,** which requires all State security agencies to observe and respect human rights and freedoms in the performance of their functions; as well as Section 24 ofthe Police Act Cap 303

In the case of Isabirye Kiwule Vs Attorney General (Supra), the Complainant Isabirye Kiwule was arrested on allegations of being in possession of an illegal gun and that when he denied possession ofit; he was kicked and beaten severely on his bare back and buttocks. This was done as some men held him down by sitting on a rack placed across his back. He was also intimidated and subjected to threats of death. All this assault was done in order to force him to admit possession of an illegal gun. On release, Isabirye Kiwule was admitted at Mulago Hospital for four days. After discharge from the hospital he continued to suffer from backache whenever he sat or stood for long periods, and this also adversely affected his ability to work.

The presiding Commissioner in this matter, J. M. Aliro Omara who decided this case on 3rd December 2004 at Jinja, held that the torture inflicted on the Complainant was a calculated and intentional act and the perpetrators knew that they were indulging in a wrongful act. He awarded Isabirye Kiwule Shs. 10,000,000/= as general damages, and an additional Shs. 3,000,000/= as exemplary damages, for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

As already noted, C was beaten with iron bars, electric wires and gun butts on his back, ribs and the head and he suffered injuries on his head and back and this was done by the Police Officers because he had refused to go with them when he was called. He also claimed to have sought for treatment after about two to three after his release.

However, C's injuries were not as fatal as those that were sustained by Isabirye Kiwule in the cited case leading to his admission in hospital for four days as already noted.

Therefore, since the infringement on C's right under consideration now violated a non-derogable right guaranteed under Article 44 of the Constitution, C was never charged in court for the alleged offence and also taking cognizance ofthe principle regarding the value ofthe amount of the money awarded and its current purchasing power. Isabirye was awarded 10,000,000/= about thirteen years ago and so, even if Kato Clovice suffered less injury than him therefore, I shall consider the same quantum for damages in his favour in respect of the violation under consideration now than what was awarded to Isabirye Kiwule for a similar violation in the cited case.

I accordingly award 10,000,000/= as general damages for the violation of C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

## b) Remedies for violation ofC's right to personal liberty

I have already ruled that the Complainant's right to personal liberty was violated for a duration of five days. Therefore, the legal context within which I am considering this particular issue for resolution includes among others, Article 23 (7) of the Constitution, which provides that any 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 agency ofthe State or another person or authority.

As I determine the quantum of the award to be ordered in respect of this violation, I shall take into consideration the awards that were ordered in the following cases which I have found relevant in this regard.

First, the case of **Matsimo Silagi Bernard And Mabnukira Peter vs Attorney General,** Consolidated Civil Suits No. 383 of 2002 and 429 also of 2002, Justice Yorokamu Bamwine awarded Shs. 10,000,000/= to the first plaintiff who was illegally detained for 36 days, and Shs.5,000,000/= to the second plaintiff for illegal detention for 5 days.

The second case is of **Mugisha John Bosco And Bizimungu Alex vs Attorney GeneraL, UHRC/097/2003,** in which former Commissioner Constantine Karusoke awarded each of the two Complainants Shs.2,000,000/= for illegal detention for five days by Police at Nkoni Police Station.

The case of Matsimo above shows that court has the discretion to award complainants since the award given to the two Complainants in the said case was not uniform. Circumstances of the violation of one's right should therefore be applied.

Considering the fact the Complainant in the case before me was wrongfully arrested for no crime and unlawfully detained for a total of five days (after subtracting the two lawful days) when he had serious injuries, was not charged and the depreciation ofthe Uganda shillings since the year 2009 when his right was violated, I will consider more money than in the case of Mugisha John Bosco. I will therefore award C U. Shs 3,000,000/= (Three million Uganda shillings) as general damages for the violation of his right to personal liberty.

I therefore order as follows:

## **ORDER**

1. The complaint is allowed.

2. The Respondent (Attorney General) is ordered to pay to the Complainant Kato Clovice a total of Ug. Shs.13, 000,000/= (Thirteen million Uganda Shillings) for the violation of his rights by State agents. The award is broken down as follows:

| (a) | of General damages for the violation his right to personal liberty | - | Shs. | 3,000,000/= | |-----|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---|------|--------------| | (b) | of of damages violation General for the his right freedom from torture cruel, inhuman degrading or or treatment or punishment | - | Shs. | 10,000,000/= | | | | | | |

| TOTAL | - | Shs.13,000,000/= | |-------|---|------------------| | | | |

- 3. Interest at the rate of 10% per annum to be paid on the total sum of Ug. 13,000,000/= (Thirteen million Uganda Shillings only) calculated from the date of this decision until payment in full. - 4. Each party to bear their own costs. - 5. Either party may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision ifnot satisfied with the decision ofthis Tribunal.

So it is ordered.

**DATED AT FOPRTPORTAL ON THIS. ..... DAY OF 2017**

**DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER**