Kayemba Moses Henry v Attorney General (Complaint UHRC 166 of 2010) [2019] UGHRC 18 (12 February 2019)


# THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

#### HOLDEN AT KAMPALA

# COMPLAINT NO: UHRC/166/2010

**KAYEMBA MOSES HENRY ::::::::::::::::::::::::::::::::::::**

and

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

#### BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA

#### **DECISION**

The Complainant (C), Kayemba Moses Henry, a former UPDF operative attached to Mubende Militray Barracks, alleged that on 6<sup>th</sup> February, 2009, Major Mugerwa accused him of stealing guns. That he was ordered to make a statement to that effect but he refused to do so. That three days later, four soldiers attached to

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Mubende Military Barracks were ordered by Major Mugerwa to arrest him. That on further orders given by Mojor Mugerwa, the four soldiers beat him using batons, after which he was detained for about six months. That as a result of the beating, he sustained injuries on his legs.

C therefore prayed to the Tribunal to order for compensation to him by the Respondent (R) for the alleged violation of his right of personal liberty and the right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

R through his representative Counsel (RC), Ms. Josephine Kiyingi denied liability and opted for putting a defence in this matter.

#### **ISSUES:**

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The **issues** to be resolved by the tribunal are:

- 1. Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether C's right to personal liberty was violated by State agents. - 3. Whether $R$ is liable for the violations. - 4. Whether $C$ is entitled to any remedy. - Before I resolve the aforementioned issues, I would like to note from the record of proceeding that R did not call any witnesses in defence in this matter, and nor did they file any written submissions. RC was only able to cross-examine C and his two witnesses. Nevertheless, C still retained the duty of proving his case against R to the satisfaction of the Tribunal as required under Section 101 (1) of the Evidence Act Cap 6, which states that:

Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that the facts exist.

And under Section 102 of the same Act, which also states that:

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

# **RESOLUTION OF ISSUES:**

# Issue 1: Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

C testified that on 6<sup>th</sup> February, 2009 at around 5.00 p.m. as he was returning from Kiseminti Village and approaching the small gate of Mubende Military Barracks, he was arrested by six soldiers who were on duty. That he was taken into the room that was ordinarily used as a security point, and at around 8.00 p.m. he was taken to the quarter guard. That he was informed that Major Mugerwa had ordered for his arrest. He clarified that at that the time, he was still at the rank of a private in the UPDF and his employee number was RA.132722.

He testified further that the next morning on 7<sup>th</sup> February, 2009 four soldiers, including the one called Okiring, plus three others whose names he could not recall, beat him on the orders of Major Mugerwa who was also present and telling the

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soldiers that he should be beaten until he knelt down and apologies to him. That he was severely beaten since he never knelt down to apologize for what he did not know. That the four soldiers beat him using a baton, and also kicked him. That as a result of all this, his right leg was severely injured and blood started oozing out of the joint that had become twisted, although it was latter placed back in its normal position. He added that he was also beaten and kicked on his right hand, ribs, lower abdomen and the back. That the soldiers started beating him at around 7.00 a.m. and never stopped until he lost his consciousness. That when he regained consciousness, he found himself in one of the special rooms in the barracks.

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C added that he was beaten in the same manner on the second and third days still under the orders of Major Mugerwa who also watched the beating as it was done to him. That on the third day, he noticed that his leg was twisted and paralyzed, and he also felt a lot of pain in the same leg.

C claimed further that when he was released, he immediately went to Mubende Hospital where he was admitted for two months and received treatment for his leg which was also operated on. He testified further that although the treatment he received temporarily controlled the pain in the leg, he still continued to experience pain in the ankles and hip of his right leg up to the time he testified before the Tribunal. That whenever he felt pain, he would get treatment from various clinics within his reach, and that he had also gone to St. Jane Frances Medical Centre.

C's two receipts from St. Jane Frances Medical Centre in Mubende were admitted with the consent of RC as his first exhibit (CX1 a-b).

During cross-examination, C reiterated that he was transferred to Mubende barracks as a soldier in 2003, and that he stayed there until 2010. That he had been arrested from the same barracks by four soldiers, and this time he named three of them as Okiring, Odongo and Tugume but he could not recall the names of the fourth soldier. He stressed that the same soldiers beat him using batons in the

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presence of OC Mabushu, officer Odongo and Major Mugerewa; and that as a result, he suffered the dislocation of the right leg.

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C's first witness (CW1), **Nakasita Immaculate** testified that one day in February 2009, in the morning, she personally saw C being beaten from the quarter guard of Mubende Army Barracks by four soldiers being ordered by their superior called She specifically identified and named Odonga and Okiring as Major Mugerwa. having been among the soldiers who beat C. She clarified that at that time, she was

married to a solider known as John, and that the two of them were staying in Mubende Army Barracks. She told the Tribunal that she knew C before as having been a soldier in that same barracks.

CW1 added that C was beaten randomly by the four soldiers using batons, and that they acted on the ordered given by Major Mugerwa to them to beat C. She testified further that as her home was not far from the quarter guard, she was able to hear C crying out for help in pain, adding that she was at times attracted to come and see the person who was being beaten. She stressed that she saw and heard C being beaten for three days. That the soldiers would kick him all over the body and the last time she saw him being beaten, the soldiers went away with him inside the cell.

During cross-examination, CW1 reiterated that in 2009, she was staying in Mubende Army Barracks and that she personally saw C being beaten for three days, and she was able to recognize and identify the person being beaten as being C but that she did not know the reason why he was being beaten.

CW2, Kyeyune Shaban testified that C was his colleague in UPDF. That one day in February 2009, in the morning hours as he was coming from Nakayima Village heading back to his home in Mubende Military Barracks, he saw C being beaten from inside the quarter guard by the soldiers called Okiring and Odonga, who were

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being given orders by Major Mugerwa to carry out the beating. That the soldiers were known to him as they were also residents in the same barracks. That they were beating C using batons, and they beat him on his joints from about 8:00 a.m to 9:00 a.m. That since C was one of his closest friends, CW2 stayed there watching what was happening but he did not know why the two soldiers were beating C. That he left that place when C was put in the cell at the quarter guard and the soldiers had stopped beating him.

He asserted that he took food to C at the quarter guard that day. That on the following day, he saw C being beaten again for about thirty minutes by the same soldiers, and this was at about 8:00 a.m. and the beating was being done form inside the cell. That although he was standing at a distance of about 100 meters away, he was able to see clearly what was happing since the quarter guard had only a roof and no walls. That on the $3<sup>rd</sup>$ day, after he had obtained a gate pass at about 8:00a.m., he still found C at the quarter guard being beaten by the same soldiers but this time he did not stay for long. That it was the same people beating C, and they were beating him in the same manner as they had done it before.

He stated further that after five days, he was also arrested and detained together with C. That for him he was arrested for having dishonored his gate pass. That he found C in the cell, unable to walk and was only crawling; and that his left leg was swollen and he still did not know why he had been beaten. That he was himself later on released but he left C in detention, and never met him again although he would hear that he had been detained in a prison outside the barracks.

During cross-examination, CW2 clarified that he joined UPDF in 1998, and that C was known to him since then because they met during their training. He confirmed that C was beaten by soldiers whom he personally saw clearly since he could stand and watch the beating as it was carried out; and that in the beginning he was

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detained alone in a cell but later on, when he had also been arrested, him and C were detained in the same cell.

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

The International Covenant on Civil and Political Rights (ICCPR) of 1996, also prohibits torture or cruel, inhuman and degrading treatment or punishment under

Article 7, stating that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

In addition and at our regional level, the African Charter on Human and Peoples' Rights (ACHPR) of 1981 under Article 5, also reiterates the total prohibition of violation of the same aforementioned right.

At the level of our own Country, the Constitution of the Republic of Uganda under Article 24 clearly prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment; and under Article 44 the same right is made non-derogable.

As the alleged incident in this matter is said to have accrued in 2009 well before the Prevention and Prohibition of Torture Act of 2012 came into operation, the definition of the term torture given in the aforementioned Act cannot be retrospectively applied to this matter. However, the definition given under Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) is applicable, and it states that torture is :

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any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The key ingredients of torture identified in the aforecited definition and which are important for my resolution of the issue under instant consideration, are:

- Whether the act resulted into severe suffering or pain, whether physical or mental. - Whether the act was intentionally inflicted on the victim. - Whether the act was 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 - Whether the act was carried out by, or with the instigation or the consent or the acquiescence of a public official or any other person acting in official capacity.

Therefore, I have applied the aforecited definition of torture to the instant case and established clearly that C was indeed intentionally beaten by four soldiers under the orders of Major Mugerwa, and that the beating that was done on him caused severe

pain to him as evidenced by the dislocation of the joint of his right leg, the severe pain he felt in the same leg, and the state of unconscious into which he ended up. In addition, C was denied medical attention for all the time he was in detention. This was all done to punish him since he had refused to kneel down and apologise as ordered by Major Mugerwa. The four soldiers who beat C and Major Mugerwa who issued the said orders, were all public officials who both individually and severally carried out the said acts while they were performing their official duties.

It is therefore clear from the foregoing analysis, that all the four ingredients required to prove whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the aforementioned State agents, are on a balance of probabilities satisfactorily verified as applicable in this matter.

However, the medical expert Dr. Wanga, who was summoned twice to interpret C's medical documents from Mubende Regional Referral Hospital never, appeared before the Tribunal and the said evidence was therefore abandoned by C.

Accordingly there is no medical evidence from C to enable me determine precisely the degree of the gravity of the injuries that C suffered. Nevertheless, this does not negate the fact that C was tortured and injured. C's congent evidence in this respect has been very convincingly corroborated by the evidence adduced by CW1 and CW2, both of whom testified credibly as eye witnesses thus, clearly identifying the soldiers who beat C, and vividly describing how they beat him. Accordingly, in this respect I have decided to apply the principle of law that was upheld 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. If a witness says "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 the gravity of the assault.

Nevertheless, I shall attach only limited weight to C's own oral evidence, adduced to demonstrate the exact degree of the gravity of the injuries he sustained but at the sometimes, accept his claim that he was indeed injured.

I therefore find on the balance of probabilities, that the aforementioned State agents indeed individually and severally violated C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

Accordingly, the issue I have been considering is resolved in the affirmative and therefore, C's claim in this regard succeeds.

## Issue 2:Whether C's right to personal liberty was violated by State agents

C testified that he was arrested by six soldiers on 6<sup>th</sup> February, 2009 at around 5.00 p.m., as he was returning from Kiseminti Village and approaching the small gate of Mubende Military Barracks. That from that time, he was held in detained for about six months and released without being taken to any court of law.

During cross-examination, C reiterated that he was indeed detained for about six months, and that throughout all that period he was held in a cell at the quarter guard.

CW1 corroborated C's claim saying that she saw C being arrested on a certain day during February 2009, and then being detained at the quarter guard from where she could hear him crying out for help for about two days.

CW2 also similarly corroborated C's claim in this respect, stressing that he was himself detained together with C at the quarter guard, adding that before that, he took food to C while he was in detention at the same quarter guard.

C claimed to have been detained for about six months. From February when he was arrested, six months detention would have ended in August. However, C did not adduce any credible evidence like documents to prove the duration of his detention. The only documents he tendered in that could give some idea regarding the duration of his detention, were the receipts from St. Jane Frances Medical Centre dated 4<sup>th</sup> June 2009, about the treatment that C claimed to have received shortly after his release.

Therefore, according to these documents and C's claim, the duration of detention could have been four months thus, from February to June, 2009. In this same regard, RC never challenged C's claim in any way. Nevertheless, there is an inconsistency between C's own direct claim about his detention for six months, and his other claim that he received the aforementioned medical treatment soon after his release from the four months detention.

In the case of Serapio Tinkamalirwe Vs. Uganda, SCCA 27/89, it was held that it is not every inconsistency that will result in a witness's testimony being rejected. That it is only grave inconsistencies unless explained satisfactorily which will

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usually but not necessarily result into the evidence of a witness being rejected. Minor inconsistencies will not usually have a negative effect unless Court thinks that the inconsistences point to deliberate untruthfulness.

Therefore, although I shall ignore the inconsistency in C's evidence regarding the duration of his detention, I shall accept the claim that C was indeed detained for quite some time but certainly, beyond the 48 hours period allowed under the Constitution for legal detention before one is released on bond or taken to Court.

I therefore find on a balance of probability, that C's right to personal liberty was violated by State agents, although the duration of the violation is not ascertained.

#### Issue 3: Whether R is liable for the violations

In the case of Muwonge vs Attorney General, (1967) EA 17, Justice Newbold P. gave his judgment in which he held that: "The law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are for which the master is to be held liable."

It has been established that C was indeed arrested by UPDF and he was detained at Mubende Army Barracks quarter guard and tortured by the said soldiers. At the time C was arrested, he was in good health but on his release from detention he had injuries. Therefore, for anything illegal that happened to C while he was detention, the UPDF is answerable.

I therefore find it necessary to apply in this respect the principle which was upheld in the case of Aksoy vs Turkey, (1995) 21 EA 573, in which the European Court gave judgment holding that: "where an individual is taken into Police custody in good health but is found to be injured on release, it is incumbent on the Police

authority to provide a plausible explanation as to the cause of the injury, failing which a clear issue arises."

As already pointed out, R's side failed to call defence witnesses and to provide a credible and satisfactory defence throughout the hearing of this matter. RC only cross-examined C and his witnesses but still failed to shake their evidence. Accordingly, I am applying another principle of law that provides that any issues that are argued before court or a tribunal by the plaintiff or complainant, must be deemed to have been admitted where the defendant or respondent fails to adduce

any defense evidence in rebuttal (see Edeku Vs Attorney General, (1995) X1 KALR $24).$

Article 119 of the Constitution of Uganda provides for the Attorney General to represent Government in Courts or any other legal proceedings to which Government is a party.

I therefore find it fitting to hold R (Attorney General) vicariously liable for the violation of C's two rights already proved.

#### Issue 3: Whether C is entitled to any remedy.

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Article 53(2) (b) of the 1995 Constitution of Uganda empowers the Uganda Human Rights Commission, once it gets satisfied that there has been an infringement of a human right or freedom, to order for redress which may include among other forms, payment of compensation. I now invoke these powers.

Since C has proved to my satisfaction that his aforementioned two rights were violated by the said State agents, he is therefore entitled to receive compensation from the State by way of damages for the two violations of his rights.

# a) Violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

In the complaint of Busingye David Vs Attorney General and Asiimwe Yasin, **Complaint No. UHRC/FP/13/2006,** former Commissioner Fauzat Mariam Wangadya concluded that the complainant had been severely beaten by Police

Officers at Bulindi Police Post, to the extent of sustaining a fracture of his right leg. She therefore awarded him Ug. Shs15, $000,000/$ = (Fifteen Million Shillings only).

In the instant complaint, C was beaten daily for three days. He lost consciousness and also sustained a joint dislocation and upon his release, he was admitted in Mubende Regional Referral Hospital for two months. I am therefore convinced that in spite of the absence of concrete medical evidence scientifically interpreted by a medical expert, C was surely badly injured and he suffered devastating effect of the injuries he suffered.

On this basis therefore, I am awarding C Ug. Shs. $16,000,000/$ = (Uganda Shillings sixteen million only) as general damages in compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

### b) Violation of the right to personal liberty

In the case of MUGISA JOHN BOSCO AND BIZIMUNGU ALEX vs ATTORNEY GENERAL, UHRC/097/2003, after it had been established and proved that the two Complainants were illegally detained at Nkoni Police Post for five (5) days in the year 2000, the Presiding Commissioner, Constantine Karusoke, who heard the case awarded them Ug. Shs.2, 000,000/= each as general damages for this violation of their right to personal liberty. I shall use this precedent as a basis for determining the amount of money to be ordered for the similar violation in the instant case.

The actual number of days which C spent in detention are not clearly established but it is confirmed that he was certainly arrested and detained beyond 48 hours. He claimed to have been detained for about six months from February to August, 2009. However, I shall use my own discretion in this regard and therefore award to C, Ug.

Shs. $6,000,000 =$ = (Uganda Shillings Six Million only)as general documents in compensation for the violation of his right to personal liberty. I therefore order as follows:

### Orders:

- 1. The Complaint is allowed. - 2. R (Attorney General) is ordered to pay C, Kayemba Moses Henry a total sum of Ug. Shs. $22,000,000/$ = (Uganda shilling twenty two million only) as general damages in compensation for the violation of his two rights broken down as follows: - a) For the violation of the right of freedom form torture or cruel, inhuman or degrading treatment or punishment - Ug. Shs. $16,000,000=$ b) For the violation of the right to personal liberty - Ug. shs. $6,000,000=$ 22,000,000 Total

Interest at the rate of 10% per annum to be paid on the sum of Ug. Shs. $22,000,000/$ = (Uganda Shillings twenty two million 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 of this decision if not satisfied with the decision of this Tribunal. So it is ordered.

12<sup>TH</sup> DAY OF FEBRUARY, 2019 DATED AT KAMPALA ON THIS...

SIGNED BY:

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DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER