Kayondo Juma v Attorney General (Complaint UHRC 96 of 2006) [2018] UGHRC 10 (5 April 2018)

Full Case Text

![](_page_0_Picture_0.jpeg)

### THE REPUBLIC OF UGANDA

## THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT KAMPALA

## COMPLAINT NO. UHRC/96/2006

**KAYONDO JUMA :::::::::::::::::::::::::::::::::::: AND** ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

# BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA

#### **DECISION**

The Complainant (C), Kayondo Juma brought this matter against the Respondent $(R)$ seeking compensation for the violation of his rights to protection from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty. He alleged that on 13th March, 2006 while he was attending a meeting at the LC1 Chairman's home at Kalinabiri Zone in Ntinda, two VCCU operatives including a one Allan Juuko arrested him claiming that he was wanted by their bosses Musana and Bwambale at their headquarters in Kireka, on allegation of theft of music instruments, and was taken to Kiira Road Police Station. That the operatives refused to listen to the OC Station of Kiira Police Station who told them that Police was still investigating the theft allegations against him. That VCCU operatives argued that police had messed up the case and therefore, they instead took him to their headquarters at Kireka. That while there, he was severely beaten all over his body by the VCCU operatives who kept on urging him to reveal the whereabouts of the music instruments but which he claimed he had no idea about. That as a result of the beatings, he sustained injuries and internal bleeding; that clotted blood oozed from his anus and he

also sustained a deep wound above his left eye. He further alleged that he was detained at VCCU headquarters in Kireka for 14 days without appearing before any court, after which he was told to go home as he had no case to answer. That he was re-arrested and again taken to Kira Road Police Station where he was detained for a night and then released on police bond on 27th March, 2006.

C contended therefore that the actions allegedly committed against him by the VCCU operatives amounted to violation of his rights to freedom from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty and he therefore sought for compensation from $R$ .

R through his representative, Ms. Josephine Kiyingi (RC) denied liability.

# **ISSUES:**

- 1. Whether C's right to personal liberty was violated by State agents. - 2. Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment 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 above issues, I wish to note from the record that R did not call any witnesses in defence of the matter and nor did they file any written submissions. In addition, RC did not cross-examine C despite the several adjournments that were granted for her to do so but only cross examined C's expert witness. Nevertheless, C still retained the duty to prove his case against the 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;**

# 1. Whether C's right to personal liberty was violated by State agents.

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda. It is not an absolute right since it can be derogated from when any of the circumstances listed in Article 23(1) of the constitution exist, for example where there is reasonable suspicion that a person has committed or is about to commit a criminal offence.

The law prohibits arbitrary arrests and detention as the Constitution of Uganda sets out procedural guarantees to prevent the abuse of persons under arrest and detention. Thus, Article 23(4) (b) requires that anyone arrested upon reasonable suspicion that he/she has committed or is about to commit a criminal offence, must if not earlier released be produced in court within 48 hours.

C alleged that he was arrested by VCCU officers on 13th March 2006, taken to Kiira Police Station where he was given bond but he was immediately rearrested by VCCU operatives and taken to their offices in Kireka. That he was in detention for 14 days without being taken to court, after which he was told to go home as he had no case to answer. That he was re-arrested and again taken to Kira Road Police Station where he was detained for a night and then released on police bond on 27th March, 2006.

C did not call any witness to corroborate the allegations of personal liberty, nor did he tender in any release on bond to show exactly the period he spent in detention. However, the complaint file had a release on bond which was

obtained by the Uganda Human Rights Commission's investigation team, and it indeed reveals that C was released on the 27th March, 2006. The Commission has powers to conduct investigations and secure documents from different people or places under Article 52 of the Constitution of the Republic of Uganda of 1995 as amended.

In this regard therefore, the release on bond on file is a document which was secured by the Commission in relation with the violation of C's rights. Accordingly, I have decided to rely upon this document under Rule 21 of the UHRC (procedure) Rules of 1998.

As noted earlier, it was incumbent on $R$ to disprove C's claims that C was in their custody, a thing which they failed to do. I am therefore convinced that C was indeed, arrested and detained as he claimed, because the date of release mentioned in C's testimony is consistent with that on the police release on bond form. It is therefore proved that C was indeed at Kiira Police Station from 13th to 27th March 2006, which makes it a total of 14 days without being produced before court. However, the first days (equivalent of 48 hours) were legal detention.

The law is that once a Complainant proves to the satisfaction of the tribunal that he or she was illegally detained by the Respondent's agents or clients then the burden shifts to the latter to prove that the arrest and detention were justifiable and legal, and this was asserted in the case of **Sekaddu** $v$ Ssebadduka (1968 E. A 212).

In the instant case, RC did not call any evidence to rebut that of C, neither did they make any submissions in defence or in denial of C's claims.

Therefore, I find on a balance of probabilities that C's right to personal liberty was violated by State agents who are also R's Clients.

2. Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) gives $an$ internationally agreed legal definition of torture by stating 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 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions

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

Accordingly, the International Covenant on Civil and Political Rights (ICCPR) 1996, 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."

Similarly, the Constitution of the Republic of Uganda under Article 24 also 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 Constitution makes the above-mentioned rights non-derogable.

The actions committed against C would constitute "torture" if the same were proved taking into account the definition of torture as provided under Article 1

of the CAT. I have decided to evaluate the evidence adduced in order to determine whether the alleged assault on C and its effects on him, amounted to the level of severity that constitutes what would be categorized as torture, or whether the effects of the same actions amount to only what can be categorized as cruel, inhuman or degrading treatment or punishment.

In addition, I have decided to evaluate the evidence to determine whether the important four ingredients of torture as identifiable in the afore-cited CAT definition and the current International concept of torture are proved by the evidence adduced. The four ingredients are:

- a. Whether the action has caused the victim severe pain or suffering, whether physical or mental. - b. Whether such pain and suffering was intentionally inflicted on the victim. - c. Whether the purpose of the action was to obtain from the victim information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination - d. Whether the actions were inflicted by or at the instigation of, or with the consent or acquiesce of a public official or other person acting in official capacity.

Once the above ingredients are proved against R's agents, then I shall consider it to have been established that C was indeed subjected to torture, contrary to the laws of Uganda.

C testified that on 13th March, 2006 while at his shop in Kigowa, he was called by the Chairperson LC1 on phone telling him that he was needed at his residence because they wanted him to close his shop since the landlord needed the room. That as they were in the meeting waiting for the landlord, relica VCCU operatives appeared in a sleek black car Reg No. UAG306V. That they were three men, one of them was Juuko Allan and he told the Chairman that they wanted C since he was a serial thief and that he had a gun. But the chairperson advised them to take him to Kireka Police Station. That he was

put in a vehicle and taken to Kireka Police Station where the O/C CID informed the VCCU operatives that C had just been granted bond at the same Police Station for the same offence for which they had arrested him. That the VCCU operatives and the chairperson went out and left C there and after an hour, the $O/C$ CID granted him bond but as he was getting out, he was intercepted by the same Allan and two other men, put in a vehicle and taken to VCCU offices in Kireka.

That when they reached VCCU offices, C was put in the cell and after 5 days, Allan went there and told him that they had confirmed that he was in love with the landlord's daughter, and also that he had stolen her property but he denied the allegations of having stolen the property.

C added as follows:

He told me to lie down. I tried to resist but he kicked me and I fell on the ground. He removed a pistol and asked me where we had put the property and I told him I don't know about the property. He said that he was going to kill me but I told him that he would kill me for nothing. He stepped on me and kicked me on the head. I got a wound above my left eye,I started bleeding seriously and some blood splashed on his shirt, so he left and went to change the clothes. There were some detainees who had been visited so I went where they were and the OC CID was present and he asked me what happened, and I told him what Okwir had done to me. They called a nurse who used to treat detainees; she cleaned the wound and put a plaster. Okwir came back when he had changed clothes, he picked a piece of sugarcane and he beat me saying I have infected him with my AIDS, after which I went to the cells. In the morning while I was still in the cells, I wanted to go for a short call. When Okwir opened for me, he didn't escort me for the short

$\overline{7}$

call. When I undressed I saw a red thing protruding from my anus, and while still there, Okwir came and pulled me and said I had over delayed and I fell down. I put on my trousers and came back to the cells.

C further stated that after one night, he could not go for the suspects' parade and the other suspects informed Musana that there was a suspect who was dying in the cells. That after the parade, he saw Robinah Nakyaze, a sister to the landlord. Proscovia Kivenye the mother, and Pastor Solomon Male the brother. That after, the nurse had removed the old plaster and put on a new one, C told her that he was feeling pain in his anus. That he undressed and she saw something red from his anus, and she said that she could not treat it so she took him to Mr. Musana. That Musana ordered them to take him back to the cells. That he was given a bond of Kira Road Police Station and told to report back. That he went to ACTV and Kardic Hospital for treatment, the latter where he was admitted for 10days.

C's evidence is corroborated by that of the Expert Witness, Dr. Lubega **Ronald (CW1)** who testified that he was a holder of a Bachelor's Degree in Human Medicine and Surgery, and was at time undertaking a Masters in Science and Public Health. That he qualified in 2010 from Mbarara University of Science and Technology and had practiced medicine for five years and been with ACTV for three years. That he used to work with a Police Surgeon, Dr. Sendi, a senior pathologist at the University as a student and this exposed him to examining people and dead bodies, and also to writing medical and postmortem reports.

He interpreted the medical report from ACTV and stated that the patient indicated to the doctor that he had been beaten systematically and kicked all over the body, deprived of communication and receiving visitors, and all this was done by Security agents. That the client reported that on 21st January, 2006, he was arrested by Police on the allegation of theft, at around $6.00 \text{ p.m.}$ and detained at Kira Police for 3 days where he was later on released on Police Bond but on the 13th March, 2006 while at an LC meeting, operatives of VCCU wearing plain clothes re-arrested him. He was taken to Kira Police Station and to VCCU Offices in Kireka where he was detained for 14 days and beaten during the first three days systematically using a sugar cane at the back and all over his body. That he was also slapped several times in his face and kicked all over the body, and his head was stepped on with army boots which led to profuse bleeding from a deep cut on his face.

That he was also kicked in the anal region (anus) where he developed severe pain and extrusion of a mass in the rectum. This was treated with anti-biotic and pain killers but did not improve. After 14 days he was released on Police Bond. Later he visited a clinic and medicine was inserted in his anus and he got some improvement. That when he went to ACTV the recorded health complaints were back pain, limb pain and peri anal pain i.e. around the anus.

He further testified that C was examined and these were the findings:

- The doctor found the patient in fair general condition without anemia, he was not jaundistic meaning that he was not having internal bleeding or problems of the liver, not dehydrated and had normal body temperature. He was weighing 52 kgs (body weight). - He had a fresh scar above the central side of the left eye brow which was measuring 2.5cm in length. He noted that he had a linear scar above the left eye brow. - The abdomen had supru-pubic tenderness i.e. pain above the bones of the pelvis. - The rectum had a $3^{rd}$ degree hemorrhoid at 3 o'clock. 3rd degree means the mass was covering 3 quarters of the anus i.e. clotted blood that can be very painful and especially during defecation.3 o'clock meaning that it was located at the right side.

The diagnosis was a soft tissue injury and a 3rd degree hemorrhoid whose effects were: back pain, pain in the ankles and occasional headaches. That socially, he could not work at that time as a result of the torture. He further noted that the physical examination findings had a high degree of consistence with the alleged common torture methods and their common after effects in a particular region of the body. He further noted that the acute and chronic psychological symptoms and disabilities had a high degree of support consistent with the allegations of torture and this also held the psychological medical findings as well as the psychological examination findings that confirmed the torture methods used.

He concluded that the complaint of the pains that he had and disabilities coupled with the physical examination findings had a high degree of relating to torture. He was therefore convinced that the patient had suffered torture.

During cross examination by RC, the witness stated that his work experience in torture cases was of five years. That basing on the report, C was examined on 25th March, 2006. He also stated that "Acute" meant pain which is under 14 days, after occurrence; that if it doesn't go, it is referred to as chronic after 14 days, that is for the case of pain or infections.

When he was re-examined by Counsel for the Commission, he stated that "acute" meant any pain which is below 14 days but it can be both acute and chronic, and he could tell the age of the scar putting into consideration when he looks at it.

As stated earlier, RC neither produced defense witnesses nor filed submissions in defence of C's allegations, despite the several adjournments that were granted for the same. Also, R did not cross examine C but only cross examined his witness.

According to the evidence adduced by C and his witness, it is not doubtable that C was taken to VCCU offices and beaten while in detention as he was being asked to confess to where the stolen property was. C's testimony is corroborated by the evidence of CW1, who is an expert witness. CW1 interpreted the medical report which is consistent with C's allegations of torture and also confirmed the parts of C's body that were beaten. R, at this stage was supposed to give an explanation as to how C sustained the injuries but instead decided not to challenge C's allegations.

C's testimony therefore remained solid as it largely unchallenged. The testimonies of C and his witness have been found to be consistent with each other with regard to the allegations of torture.

As seen from the afore going analysis, C was beaten by State agents, he sustained severe injuries, and the purpose for the beating was to force him to confess to having stolen the property and to disclose the whereabouts of the said property; and the torture was carried out by a public official acting in his official capacity.

I find that C suffered severe injuries while in detention at VCCU. He was arrested while he was in good health condition attending a meeting at the LC1's Chairman's home. He sustained the injuries while in custody. The State agents therefore had a duty to come up with a credible and satisfactory explanation as to how C came to sustain injuries while he was in their custody.

I am therefore applying the principle that was upheld in the case of **AKSOY** vs TURKEY, (1995) 21 EA EHRR 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."

Based on C's evidences which is consistent with the evidence adduced by his witness, I find that all the ingredients required to prove whether C's freedom from torture, or cruel inhuman or degrading treatment or punishment was violated by State agents are satisfactorily proved in this case.

I therefore find on the balance of probabilities that State agents violated C's right to protection from torture, cruel, inhuman and degrading treatment or punishment. This issue is therefore resolved in the affirmative.

## 3. Whether R (the Attorney General) is liable for the violations.

Section 3 of the Government Proceedings Act cap 77 provides that the government is liable for all torts committed by its servants or agents. Section 10 of the same Act further provides that all civil action against the government should be instituted against the Attorney General, and this reaffirms what is stated under what is stated. Article 119 A (4) of the Constitution of the Republic of Uganda.

In Lister v Hesley Hall Ltd (2001) UKHL 22, the House of Lords articulated the principle that the master is liable whether the act of his or her servant is authorized or an unauthorized act done in a wrongful manner.

Following the afore cited legal principles, R in the present case is found to be vicariously liable, since the VCCU operatives who violated C's rights are public servants who were acting in the course of their duty.

## 4. Whether C is entitled to a remedy.

Article 50 (1) of the Constitution of the Republic of Uganda 1995, states that:

Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation.

Furthermore, Article 53(2) of the same Constitution gives the Uganda Human Rights Commission power to order payment of compensation or any other legal remedy or redress if satisfied that there has been an infringement of a human right or freedom.

In this case, it has already been proved that State agents violated C's rights to protection from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty and therefore, C is entitled to compensation by the State.

In the case of Agaba Bernard Vs. Attorney General UHRR(2008-2011), former Commissioner Fauzat Mariam Wangadya held that the complainant was entitled to compensation for the violation of his right to personal liberty, and that it was the practice of the Tribunal to award U. Shs 2,000,000=( Uganda Shillings Two Million) for every seven (7) days of unlawful confinement.

In the instant case, C was in illegal detention for 12 days. Therefore, following the above criteria, C is to be awarded for 12 days compensation at the rate of UGX 285,714= per seven days. However, I have decided to round this up to UGX 300,000/= which results into, UGX 3,600,000= in total.

I therefore award UGX 3,600,000 (Three Million, Six Hundred Thousand Shillings) to C as compensation for the violation of his right to personal liberty.

With regard to the violation of C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment, the compensation awarded is based on the degree and severity of the cruelty and inhuman treatment he suffered as well as the fact that the right involved in this case is an absolute right.

In the case of **Isabirye Kiwule vs Attorney General**, UHRC/JJA/35/2003, the Complainant Isabirye Kiwule was arrested on 3rd February 2003 while at Namulesa boda-boda (motorcycle taxi) stage, in Jinja District by two police men wearing ordinary civilian clothes but who were armed with a pistol. He was put in a car in which he found two other men, and then taken to his home in Bufula. He was then told to hand in the gun in his possession but when he said that he had no gun, he was slapped on the head and his home was searched but without finding any gun there. After the search he was driven to a building at Nalufenya Police Station, which he later on learnt was the operational base in Jinja for the former "Operation Wembly" which was the immediate predecessor of VCCU. While there, he continued to deny possession of the alleged illegal gun whenever he was questioned and as a result, he was kicked and beaten severely on his bare back and buttocks, inflicting severe pain and suffering on him. 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. The "Operation Wembly" operatives who perpetrated this assault even procured a doctor later on to treat the Complainant who was found to have sustained serious injuries on the buttocks. On release from Nalufenya Police Station Isabirye Kiwule was admitted at Mulago Hospital from 11th February 2003 for four days, from where he was prematurely discharged at his own request for lack of capacity to afford the mounting medical bills. 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 other injuries for which he was briefly treated had healed

by the time the cited complaint was decided but there was fear that they could still pose the risk of cancer.

The presiding Commissioner in this matter, J. M. Aliro Omara who decided this case on 3rd December 2004 at Jinja, 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.

I must at the same time take cognizance of the principle regarding the value of the amount of the money awarded and its current purchasing power, as compared to the value and purchasing power the same amount might have had in case the matter had been decided soon after 2006 when the violation was committed.

I accordingly award **UGX 12,000,000/= (Twelve Million Uganda Shillings)** to C as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

Accordingly, I order as follows:

- 1. The complaint is allowed. - 2. R is ordered to pay to Kayondo Juma a sum of UGX 3,600,000/= (Uganda Shillings Three Million, Six Hundred Thousand) as compensation for the violation of his right to Personal Liberty. - 3. R is further ordered to pay to Kayondo Juma a sum of UGX 12,000,000/= (Uganda Shillings Twelve Million) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 4. Either party to meet their own costs. - 5. The total sum of UGX 15, 600,000/= (Uganda Shillings Fifteen Million, Six Hundred Thousand) to carry interest at 10% per annum from the date of this decision till payment in full.

6. Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date of this decision.

So it is ordered. ........day of ................................... Dated at Kampala this .... HON. DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER Delivered by Kirza Morean SHRO/Registrar &n the presence of the Complainant on the 5th April 2018. Provis