Kazibwe Brian v Attorney General (Complaint UHRC 58 of 2006) [2022] UGHRC 1 (21 February 2022)

Full Case Text

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# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL

#### **HOLDEN AT JINJA**

## **COMPLAINT NO: UHRC/JJA/58/2006**

KAZIBWE BRIAN ::::::::::::::::::::::::::::::::::::

**AND**

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

## {BEFORE HONOURABLE SHIFRAH LUKWAGO} **DECISION**

C, Kazibwe Brian alleged that on 28th April 2006 at about 5:30a.m, while he was at his home in Kayunga District, he was arrested by two armed men who were wearing civilian clothes. That when he asked them what the matter was, that they told him that he would get to know when they reach where they were going. That he also asked them to identify themselves and they flashed them in his face but because it was dark, he could not see so clearly. That as he was reaching for his reading glasses in his house, he was assaulted and

kicked in the chest from which he sustained injuries in the chest and arm. That he was thereafter forcefully led to the car where he found a woman called Namusoke who was a supplier of chicken feed. That he was driven to Nalufenya Police Station and detained. That his particulars were not entered into the Police record book. That was told that the reason for his arrest while his file was being transferred to the South Eastern Regional Police Offices. That when he reached the office, he was told that there was a matter between him and Namusoke which they settled amicably and he was released on that same day.

C therefore prayed to the Tribunal to order for compensation to be paid to him by the Respondent (R) for the violation of his right to personal liberty.

The Respondent(R) was on various occasions represented by several State Attorneys as their Counsels (RCs), including: Gatungo Daniel, Kasibayo Kosia, Jane Frances Nanvuma, Batanda Gerald, Adong Imelda, Kiyingi Josephine, Nabasa Charity, Abiwenkango Kennedy, Madete Geoffrey, Kukunda Claire, Sylivia Cheptoris and Namala Elizabeth Deborah. Counsel Gatungo Daniel during the hearing that took place on 22nd August 2011, neither denied liability nor accepted the facts, until after C testified that he opted for settling the complaint amicably.

In this connection, although C's complaint was originally about two issues and that is, the violation of his right to personal liberty and

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the right of freedom from torture or cruel, inhuman or degrading treatment or punishment, later on during the hearing that took place on 18th September 2012 C made a proposal for settlement of the aforementioned two issues at UGX 5,000,000/- and 15,000,000/= for the violation of personal liberty and torture respectively. This proposal was received by RC Adong Imelda but no feedback was ever given to the Tribunal regarding C's proposal.

On 1st November, 2016 RC Madete Geoffrey who was on watching brief for counsel Adong observed that the claim earlier made by C was too high and requested that it is reduced. C therefore made a written proposal of UGX. 4,500,000/= in respect to the violation of the right of freedom from torture, having withdrawn the claim for personal liberty. This proposal was duly received by R's side on that same day and consent orders were also prepared.

During the hearing that was held on 18th May 2017, RC Kukunda Claire on watching brief for Ms. Nabasa Charity submitted to the Tribunal that she had instructions from Counsel to make a counter offer of UGX 3,000,000/- to C for the violation of his freedom of torture. Accordingly, C in response to R's counter offer, told the Tribunal that he accepted to be paid the UGX 3,000,000/ $=$ as a final settlement of his complaint but noted that the only reasons he was accepting was because; that the matter had dragged for a long time, he had nothing else to do in the circumstances and that the shilling was losing value each day that passes. Accordingly, a consent order

was signed by C on the basis of his acceptance of R's counter offer, and it was taken by RC to conclude the settlement of the complaint. Therefore, taking into account this acceptance by C to be paid UGX $3,000,000=$ as final settlement of his complaint in order to seek to determine whether the UGX 3,000,000= that was offered by R's side and accepted by C for settlement of his complaint, was fair given the fact that the reasons raised by C above.

Below are three issues to be resolved.

- 1. Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State Agents. - 2. Whether R (Attorney General) was liable. - 3. Whether C has any remedy.

Before I proceed further, I wish to state that this complaint was originally heard by Honourable Dr Katebalirwe Amooti Wa Irumba. Therefore, I am to rely on the record of proceedings as taken by him.

Nevertheless, it is important for me to also take into consideration the overly repeated promises by R's side to settle the matter amicably but in vain, and the long duration of over eight years that this process took without C benefiting from the promised settlement in the end. This fact will be taken into consideration in the evaluation of evidence

and the justification and fairness of the quantum of the compensation that R's side offered to C.

### **Tribunal hearing**

During the first Tribunal hearing which was held on 22nd August 2011, C, Kazibwe Brian was present his two witnesses namely, Namusoke Rose and Mwanje Steven. R was represented by Mr. Gatungo Daniel who neither denied liability of the allegations made against R nor agreed to the same. The Tribunal proceeded to hear the testimony of C and his witnesses and:

C, Kazibwe Brian testified that he was a farmer, rearing chicken and pigs. That he also cultivated coffee. That on 28th April 2006 at 5:00a.m, when he opened his door of his house, he saw a person who was wearing civilian clothes and a jacket or "Kabuti" walking very fast. That this person/man was armed so he approached him but he noticed that he had a tough face. That the man asked him if he was Kazibwe and he responded in the affirmative and then the man said that he wanted him. That he lifted him by the trouser and he lost balance in his legs. That he (C) asked him what he had done and who he was and the man replied that all he wanted was him and he was going to take him. That while he was looking around, he saw another armed man who was also wearing civilian clothes. That he requested them to identify themselves and also asked them if they had an arrest warrant. That the man who arrested him became angry and started kicking him.

That at that time, there was some light so he could see. That he insisted that the men identify themselves one of the men again kicked him. That he told him that he was not going anywhere without them furnishing an arrest warrant and that was when he pulled a piece of paper from his pocket in the shirt and flashed it at him. That $he(C)$ grabbed the paper and moved to get his spectacles in the house. That one of the men grabbed him by the trouser and the other kicked him on the legs and he fell on the ground. That by that time, he had given back the paper to one of the men. That he struggled to free himself and enter the house and when he reached the door as he was trying to open, he was kicked hard in the left lower ribs by the man in the jacket and he released the door. That the second man hit him with a gun but on the chest and he fell to the ground. That he had never seen these men before. That he got to know one of them later. That he was lifted off the ground and taken into a white saloon car, whose number plates he was not able to see. That he was made to sit in between the two men at the back of the car.

That he found two other people in the car, that is one man who was the driver dressed in civilian wear and a lady seated in the front passenger seat. That when the car started moving, he realized that it was Namusoke also known as Namusoga who was supplying him with 'mukene'. That he kept asking the men where they were taking him but he got no reply, but when they reached Njeru, they told him that they were taking him to Nalufenya. That he raised an alarm until he got tired. That the car kept moving and he was taken to Nalufenya Police Station. That he was taken out of the car and then to the

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counter where he met a Policeman dressed in a khaki Police uniform. That he asked the Policeman why he was brought in such a manner and he responded that he should go slow because the men who arrested him were his bosses. That he (C) has never seen the men who arrested him again, nor did they say anything to the Policeman at the counter.

That while he was still at the Police counter, a certain gentleman who was wearing civilian clothes came and told him to remove his slippers and he did. That he was then taken to a go down and he (the man) opened the door and pushed him and shut it. That the go-down is at the tower of Nalufenya and he met some miserable looking inmates but he did not count them. That one of the inmates asked him if he was a thief like them but he was just crying.

That the inmates in this cell looked unkempt, malnourished and he thought that he would in turn look like them. That after about an hour, he calmed down and started talking to people he found in the cell. That one of them told him that if he had money or property, he would not spend long in detention but that for people who had nothing they were detained for quite long.

That after about two and a half hours, a certain man who was wearing civilian clothes took him out so that he could have some sunshine. That he (C) basked in the sun for about 30 minutes and thereafter a young Policeman whom he later got to know as the leader of the men who had arrested him asked him if he was Kazibwe and he answered in the affirmative. That this Policeman was also dressed

in civilian clothes, so he took him via some route where he met a lady who was wearing civilian clothes. That when he looked through the door, he saw many people from his area outside, including Sheik Jowali, Mwanje Steven and others he could not recall. That he did not know what they were doing at the Station.

That on that day at around 11:00a.m, he was thereafter taken to an office where he found about six people putting on Police uniforms. That the Officer in Charge of Wembley Nalufenya Police Station and his area Member of Parliament at the time called Musisi Kazibwe Tom was also with these Policemen. That $he(C)$ sat on the chair and the MP was asking many questions until one of the Policemen told him that he had not yet recorded his statement and so it ought to be taken.

That he was taken back to the counter where he found a lady whom he recognized by the face. That this lady was a waitress at Park Villa restaurant but he did not know her name. That she was wearing civilian clothes and they used her to record his statement. That he asked the lady if she was a Police officer and she did not respond. That she recorded his statement and he was taken back to the office.

That the six uniformed Policemen whom he met at the counter told him that he was arrested because of 'Mukene'. That he was asked by one of them if he knew anything about 'Mukene' and he replied saying that he buys 'Mukene' from a one Namusoke. That the Policeman then asked him if he had paid for some of the Mukene and refused to pay for the rest of the supplies he took from Namusoke and he told

him that the latter had supplied poor quality 'mukene' (mixed with sand) contrary to what they had agreed on.

That he was thereafter taken in a vehicle to Jinja Regional Police Headquarters and when they reached, he was taken to an office where he found a man who was wearing civilian clothes and he asked him about his relationship with Namusoke a businesswoman. That he told the officer about the whole matter and that they would have settled it without involving the Police. That at that time, his area MP, a one Steven Mwanje and other people were around, so the officer told him to go and settle the matter with Namusoke who was outside. That he went to negotiate with the latter but the officer who released him did not give him any document.

That Namusoke told him to pay the money, which he agreed to because he wanted to go home. That the area MP was around but he was not involved in the discussion. That he assured Namusoke that he would pay her as soon as he got his freedom so he was taken together with Namusoke and other people he did not know whether they were Policemen or not to one of the people he used to supply chicken called Semusu (deceased) who was in the market in Jinja town. That at that time he was very worried and only wanted to get out of prison. That he talked to Semusu and he agreed to give him the money to settle Namusoke's debt. That he paid the latter in the presence of people he did not know. That the vehicle charges which transported them to Jinja town were also levied on him and the Policemen claimed that their vehicle was stoned by his people as they

were bringing him to the Police Station. That he was told to pay $500,000/$ = for repairs which he did, but did not get any written document for that. That the vehicle was a private one and had been hired.

That the regional Police officer released him at about 2:00p.m without giving him any document. That he thereafter went to Central Police Station and reported a case of torture against the wembley Policemen who arrested him. That while he was in the cell, he was told by fellow inmates that the person who had tortured him was called Kimbowa because they had heard about the arrangements to arrest him and that they were going to do it at 4:00a.m. That given this information, he identified Kimbowa as the man who was wearing a jacket/kabuti. That he also did independent research after his release and several people who sympathized with him told him that he was the one. That he(C) continued seeing him in Jinja Town and he could easily identify him although he did not know what he does to earn a living.

That when he went to report the case at CPS, the Policemen there tried to discourage him saying that he was going to accuse officers and he asked whether the said officers were immune from accusations. That one of the Policemen listened to him and recorded his statement and he was thereafter given a Police Form 3 to take to a government doctor at Jinja Hospital. That he found the doctor who examined his chest and told him that he did not want to go to court. That the doctor wrote on the Police form and thereafter gave it back to him and he gave a copy to UHRC.

He also added that he went to IAA (International Air Ambulance) for treatment and he was also examined. That he was given some drugs but he had sustained a swelling in the right side of the chest, bruises on his right cheek and right shoulder. That he could not recall the drugs he was given but he also gave the document to the Commission. That at IAA, he was not admitted. That he personally paid for his treatment and did not collect the receipt.

During cross examination, C stated that his family members were in the house and they heard when he was struggling with the Police. That no one came to his rescue. That his neighbors were in a distance of about 100meters and they must have heard what was going on. That they did not come to intervene because by the time he was being taken, they were fearing because the people who arrested him had guns. That his wife tried to intervene. That he did not know whether the inmates who told him that Kimbowa was the one who arrested him were at the scene. He confirmed that inmates had told him that they had heard a Police officer saying that they were going to arrest someone and that those who arrested him always arrested people at that Police Station. That it was probable that Kimbowa was the one going to arrest him, because he identified the person who tortured him. That he also met him later and he came to know him as Kimbowa.

He further said that he had heard about debt collectors but never heard about private security agents. He stressed that the men who arrested him were Wembley Police because when he was arrested he was taken to Nalufenya Police Station. That the Policeman at the counter confirmed their attachment with the Police because when he asked him why he was arrested in such a manner, he told him to go slow on matters because the men were his bosses. That he also came to know later that the men who arrested him were not part of the regular Police.

He confirmed that he did not see the men who arrested and beat him at the Police Station after dropping him there.

During re-examination, C confirmed that he initially did not know Kimbowa but he saw him in the garages in Jinja Town after one month. That after he was taken to Nalufenya Police Station, he did not know when other suspects/ inmates were brought in.

CW2, Namatovu Rose testified that in May 2006 on a date she could not recall, early in the morning when it was still dark, she was inside the house but C had gone outside. That she heard a car and some people were closing its doors. That in those days, they used to sell chicken so she thought that they had come to buy chicken. That after a while, she heard her daughter calling her saying that her father is being killed. That she saw two men wearing civilian clothes holding guns and beating and kicking C. That she ran to the front of the yard and raised an alarm. That by the time they were beating him, there was already some light. That when she raised the alarm, people came but the two strange men were trying to carry him to the car. That they had been kicking and hitting him with a gun in the chest, while telling him to get up. That C had fallen down and the door of their

house got broken. That the men thereafter got C up and took him to a saloon car, whose color she did not bother observing. That before he was put in the car, she kept asking them where they were taking him but there was no response.

That the onlookers who came were scared away because the men pointed guns at them. That when she insisted on asking where they were taking C, one of the men slapped her and pointed a gun at her. That she ran away and then she came back, the men told her that they were taking C to Nalufenya Police Station. That a neighbor called Kibirango Amir witnessed the incident but run away when a gun was pointed at him. That C was put in the back seat between the men who arrested him. That there was another man in the car who was driving and woman whose names she did not know. That when C was taken, she tried to contact some people and also went to Kangulumira Police to report the case. That she made a statement and they promised to follow up the matter. That she went back home because she had not left anyone there. That C came back home in the evening but he was complaining of pain in the chest, arm and in the general body.

During cross examination, CW1 said that she did not know how long C took feeling chest pain but estimated about two weeks. That he went to hospital but she did not go with him.

CW2, Mwanje Steven testified that in 2006 on a date and month he could not remember, he received a call from a one Amir and Namatovu Rose saying that some strange people went to C's home,

grabbed him by force and had taken him to an unknown location. That the callers asked him to find out who the strangers were so he in turn asked Amir and Rose whether they were Policemen. That the two told him that they did not know because the people who had taken C were wearing civilian clothes. That he went to Jinja Central Police Station to check if C had been taken there but he found that he was not. That he was advised to check at Nalufenya Police Station so he went and found him there. That at the Police Station, the policemen who were attending to the counter were not aware about his presence at the Station because his particulars were not registered. That he insisted on finding out where C was, and inquired from the Officer in Charge who advised him to check with the Violent Crime Crack Unit Office at the Police Station. That he found C at this office and so he asked for permission to talk to him because he wanted to know why he was arrested.

He further added that he knew who the Officer in Charge at that time but he could not remember. That he was allowed to talk to C and when he asked him why he was arrested and brought to the Police Station, he told him that it was of his chicken feeds supplier. That he (CW2) talked to the VCCU officers and asked them if C was brought to the right office. That he also told the officers that he thought that they were supposed to be dealing with criminals and acting as debt collectors. That C's matter was later referred to the Regional Police Commander for resolution.

That when he saw C at Nalufenya, his shirt was torn and he looked like someone who had been fighting. That he had a swelling on the side of the head and C told him that he was feeling chest pain. That after he was released, he went with him to IAA for treatment and thereafter went back home.

At the end of this hearing, CC prayed to the Tribunal to adjourn the matter to allow her summon C's last witness. The Tribunal granted the prayer but urged RC to present their defense since the evidence of C's last witness would not taken long. RC in response to the Tribunal's observation, submitted that R's side did not have any witnesses to rebut C's prosecution evidence and suggested that he would consider amicable settlement of the matter with C. The Tribunal remarked that in the circumstance that RC thought that it was possible to settle the matter amicably, he ought to liase with CC who would ask C for his proposal without waiting for the complaint to be cause listed. RC's prayer was granted and the matter adjourned.

The second Tribunal hearing was held on 26th October 2011. C was present. R was represented by Mr. Kosiya Kasibayo. The matter came up for further hearing of C's last witness. CC submitted to the Tribunal that the witness was not able to appear because he was pursuing further studies. She therefore prayed for an adjournment to enable the witness attend and testify.

On the third Tribunal hearing held on 17th November 2011, the matter came up for further hearing of the expert witness' testimony. C was present. R was represented by Mr. Kosia Kasibayo on watching

brief for counsel Gatungo. The witness Dr. Niwamanya Emmanuel testified and C's case was closed and the defense case was opened. RC submitted to the Tribunal that since he was only holding brief for counsel Gatungo he did not see any documents on his file relating to the identification of the witness. He therefore prayed for an adjournment. The Tribunal in reference to its earlier ruling issued during the first hearing, informed counsel Kasibayo he had adequate information which he could use to build on Counsel Gatungo's efforts to settle the matter amicably especially since C's case had closed.

During the fourth Tribunal hearing, held on 18th September 2012, C was present. R was represented by Ms. Nabasa Charity. The matter came up for defense. RC submitted to the Tribunal that she was on watching brief or Mr. Gatungo Daniel who was pursuing further studies. She also submitted that the matter was coming up for defense by R's side had failed to find defense witnesses. She therefore prayed to the Tribunal to allow them close their case and have time to file submissions. The Tribunal observed that RC Gatungo Daniel was advised to consider exploring amicable settlement and it was therefore urging RC present to also explore the same since they failed to get defense witnesses. RC in response to the Tribunal's remarks prayed that she is given one month to formulate a legal opinion and forward the same to the Solicitor General after getting C's proposal. CC concurred with RC's submission and the Tribunal ordered that C formulate a reasonable proposal and submit it to R for amicable settlement, that C's proposal should be expedited and ought to reach RC before the end of the week; that RC was allowed up to October 2012 to submit the legal opinion and conclude consultations regarding the settlement, that in case the Solicitor General allowed to settle the matter, parties should with the assistance of CC sign a consent order and thereafter forward the same to the Presiding Commissioner and Registrar for signing and sealing.

The fifth and the sixth Tribunal hearings were held on 18th February 2013 and 22nd April 2013. C was present. R was not represented in both dates. CC submitted to the Tribunal that regarding the Tribunal orders issued on the previous hearing, she sent C's proposal to RC she had not obtained feedback from her. She further submitted that the RC to whom the complaint file was allocated was on study leave so at the moment no one was representing R's side. She prayed to the Tribunal to allow R one more chance to appear and furnish a report regarding the progress of the settlement proposal and/ or a decision. The Tribunal observed that before a decision could be made on the complaint, it was important that the Commission brings the matter to the attention of the Director Civil Litigation given that the matter has been cause listed twice without any State Attorney attending to it, and that the Tribunal was interested in obtaining a response regarding the settlement so that a consent order is prepared and signed. The Tribunal further observed that if the response from R's side was negative, it would consider CC's prayer without waiting for two years to elapse.

The seventh Tribunal hearing was held on 10th June 2013. C was present, R was represented by Ms. Jane Frances Nanvuma. CC

submitted to the Tribunal that as per the previous Tribunal orders, she found that counsel Batanda was allocated to handle the complaint file but she was not sure if he was still handling it because Counsel Jane Frances had appeared that day. She also submitted that there was still no response from R's side regarding the settlement. The Tribunal requested RC present to ascertain which State Attorney was handling the file and advice CC accordingly, find out the progress of the proposal for amicable settlement and that should the response be positive, RC should inform CC to prepare a consent order so that the matter is disposed of without waiting for it to be cause listed. The matter was adjourned for that purpose.

The eight and 9th hearings were held on 24th October 2013 and 21st October 2013. C was present. R was represented by Mr. Batanda Gerald. CC submitted to the Tribunal that the expert witness was summoned but was informed by C that he was transferred to a government hospital in Jinja. She prayed that the matter be adjourned to allow her trace the witness, which was granted. CC further submitted that C made a proposal of UGX 15 million and 5 million for the violation his right of freedom from torture and personal liberty respectively, but at the hearing she was informed by RC that he had not obtained a response from his bosses, so since counsel was present, he could give the Tribunal a brief. RC Submitted to the Tribunal that he was not briefed by counsel Imelda about the hearing so he could not be of any help. He however promised to provide feedback at the next hearing. The Tribunal noted that the complaint file had moved from counsel to counsel, so RC's submission should

be brought to counsel Adong's attention so that a response is obtained. The Tribunal urged C to be patient and assured him that the Commission had talked to R's side expressing the Commission's concern about all matters pending amicable settlement and it was hopeful that a positive development would emanate from it. The matter was adjourned.

On 18th February 2014, the matter came for the 10th hearing, C was present. R was represented by Ms. Adong Imelda who submitted to the Tribunal that she was in personal conduct of the matter as the file had been allocated to her. She further submitted that the file was previously handled by another Attorney and found that it also had a proposal for amicable settlement. She prayed to the Tribunal to adjourn the matter to allow her write a loose minutes to the Solicitor General proposing amicable settlement. Accordingly, the matter was adjourned to allow RC time to follow up the matter.

During the 11th Tribunal hearing held on 20th June 2014, the matter came up again for a report on amicable settlement. C was present. R was represented by Ms. Kiyingi Josephine on watching brief for Ms. Adong Imelda. Ms. Kiyingi submitted to the Tribunal that the loose minute proposing the settlement was still with the Attorney General and she prayed that the matter be adjourned pending approval of the proposal by the Solicitor General. The Tribunal appreciated the efforts of RC of submitting the loose minute and further noted that the Tribunal was reliably informed that Counsel Bafilawala Elisha had been appointed to handle matters proposed for settlement and to expedite the process. The Tribunal advised that counsel Adong contacts the above focal person and request him to have the consent order signed. Accordingly, the matter was adjourned.

On 20th November 2014, the 12th hearing was held. C was present. R was not represented. CC informed the Tribunal that she contacted RC by telephone but she was not picking. That she thereafter contacted her office to ascertain why she did not appear and she was told that they had financial constraints to facilitate counsel's transport and no State Attorney was sent to Jinja to appear before the Tribunal. Thus, she prayed for an adjournment so that she could contact counsel Bafilawala regarding the settlement, after which she would furnish the Tribunal with a report at the next hearing. Therefore, the Tribunal ordered CC to make an appointment to meet Counsel Bafilawala at the Attorney General's Office to seek the expedition of the approval for settlement of the matter and signing the consent orders. That Jinja Regional Office facilitates CC to execute the above order and that CC provide a report on the outcome of the meeting held as a result of the above order to the presiding commissioner and Ag. Registrar with appropriate recommendations for further action where necessary. Further that CC prepares a consent order to be signed by the parties and the presiding commissioner without waiting for the next hearing.

The thirteenth hearing was held on 26th February 2015 and the matter came up for feedback on the status of amicable settlement. C was present and R was represented by Ms. Nabasa Charity on watching brief for Counsel Adong. Ms. Nabasa submitted to the Tribunal that counsel in personal conduct of the matter- Ms Adong informed her that she had sent a loose minute to the Attorney General but she had not yet obtained feedback. She prayed that an adjournment to follow up the proposal for settlement be granted. The matter was adjourned sine die.

On 16th March 2016, the Tribunal held its fourteenth hearing. C was present while R was not represented, no reasons were advanced for their absence. CC informed the tribunal that RC a one Esther Nyangoma informed her that the recommendation for settlement was already submitted for settlement and she advised that C personally follows up his proposal directly with their office in Kampala as soon as possible. The Tribunal requested C to follow up the matter with the Attorney General's office in Kampala and that CC would avail him with Counsel Esther Nyangoma's contact so that he would get in touch with her.

On 18th May 2016, the matter came up for a report on amicable settlement. C was present. R was represented by Mr. Abiwenkango Kennedy on watching brief (but did not proceed). CC submitted that R was duly served but their absence was not explained. C submitted to the Tribunal that he visited the Attorney General's office three times. That on the first day, he was not successful and so he was advised that business with victims of human rights violations is always done on Tuesdays and Thursdays. That when he went back, he met Counsel Elisha Bafilawala who ordered for his file from their

registry but he failed to find it. That the file was found on the third time that he went to the office and it was with one of the State Attorneys. That when Counsel Bafilawala looked into the file, he was amazed by the time it had taken and he said that it was too long. That Counsel advised him to go back to the Commission so that the Presiding Commissioner makes a decision which they would follow and he left his office. The Tribunal urged CC together with the Registrar to vigorously follow up the matter because a legal opinion had already been sent to the Solicitor General pending approval. That R should clarify if they had abandoned amicable settlement so that the matter could be adjourned for a decision.

On 1st November, the matter came up again for the 19th hearing. C was present. R was represented by Mr. Madete Geoffrey on watching brief for Ms. Esther Nyangoma. RC submitted that he was not certain about the status of the complaint. The Tribunal on briefing RC that the matter was for amicable settlement and since C was detained for one day which was not illegal, he was persuaded to drop the claim for the violation of the right to personal liberty and he agreed to. That the only pending issue was that of torture which he was seeking to be paid 15 million. RC submitted to the Tribunal that much as he was on watching brief, C ought to reduce his proposal because it was too high. C in response to RC's submission, agreed to reduce the proposal to 4.5million only. RC submitted that he would advise counsel Nyangoma to seek approval of UG 4.5 million but C also needed to revise his written proposal so that he (RC) could go with it. The Tribunal ordered that C writes and signs a new proposal

accepting to be paid 4,500,000/= instead of UGX 15 million and also indicate that he has abandoned the claim for personal liberty, which he will avail to RC before leaving the Commission premises. CC should assist C to formulate the proposal, CC to prepare a consent order and ensure that it is taken to RC on that day, and R was given three months within which to complete the process of settlement.

On 18th May 2017, the matter came up for the 20th time. C was present. R was represented by Ms. Kukunda Claire on watching brief for Ms. Nabasa Charity. RC submitted to the Tribunal that she was on watching brief but she had instructions from counsel to make a counter offer of Three million shillings and if C accepted it, she would forward the acceptance of the offer to the Director Civil Litigation for approval. C submitted to the Tribunal that he was accepting the offer just because the matter has dragged fir a long time yet the shilling is losing value each day that passes. That he had nothing to do but to accept what they were willing to give him. CC submitted that since C had accepted the counter offer, she prayed that she prepares a consent order so that C signs and RC goes with it. The Tribunal granted CC's prayer but added that RC should ensure that once the Consent order is signed by their office, she transmits it to the Presiding Commissioner for signature.

On $8^{th}$ July 2017 was when the $21^{st}$ hearing was held. C was present. R was represented by Ms. Cheptoris Sylivia. The matter came up for an update regarding the consent orders. RC submitted to the Tribunal that the matter was being handled by counsel Nabasa who

informed her that her request for the approval of three millions for settlement was approved but the consent order had not yet been signed. Counsel submitted that she could not sign on behalf of her bosses and that the consent orders have to be taken back to Kampala. The Tribunal ordered CC to prepare new consent orders for C to sign so that RC would go with them and give them to the Director Civil Litigation for signature, after which they would be sent to UHRC for final signature by the Presiding Commissioner.

On 11th March 2019, the 22nd hearing was held. The matter came up for an update on the consent orders. C was present. R was represented by Ms. Namala Elizabeth Deborah who submitted that payment of the Three million proposal was approved but she did not have the signed consent orders. She prayed for an adjournment. The Tribunal noted that the Attorney General had failed to sign the consent orders and therefore it was adjourning the matter for a decision.

It must be emphasized that amicable settlement though an option at first was not successful. From the Tribunal proceedings on record, it is clear that Mr. Gatungo Daniel after hearing C's evidence, admitted that R did not have defense witnesses and the only option he would consider was have the matter amicably settled with C. In addition, Ms. Esther Nyangoma also requested C to personally follow up his proposal with the office of the Attorney General in Kampala as soon as possible since his proposal had already been submitted for approval. This was therefore some of the explicit actions that were undertaken by R's representatives on various occasions clearly indicating that R had actually admitted the allegation made by C and specifically, regarding the issue of violation of C's right of freedom from torture.

To further note, this matter has taken over eight solid years at the Tribunal, and all this time was allowed mainly to accord R the opportunity to settle the complaint with C amicably. Yet on several hearing occasions RCs simply appeared before the Tribunal with no updates whatsoever on the status of amicable settlement and consent orders. There is no doubt that their voluntary initiative to settle the matter was the clearest indication to the Tribunal of their side having admitted liability for the actions of the State Agents but more especially Nalufenya Police Station, which were contrary to Articles 24 and 44(a) of the 1995 Constitution of the Republic of Uganda which prohibit an individual's right of freedom from torture.

At this juncture, let me emphasize that the role of the Uganda Human Rights Commission in human rights enforcement, is to ensure that justice is served to both parties, whether victim/complainant or respondent. The Commission and specifically this Tribunal, has a role to ensure that the victims of human rights violations and/ or their beneficiaries are accorded justice and this done through hearings and issuing awards or any other legal remedy. This role is highlighted under Articles 50(2), 52(1) (a) and 53(2) (b and c) of the 1995 Constitution of the Republic of Uganda.

Therefore, in order for the Tribunal not to delay justice any more in the instant complaint, I am accordingly considering Rule 20(a) of the Uganda Human Rights Commission (Procedure) Rules 1998, which states that:

> On appearance of both parties before the Commission, the respondent shall be asked by the Commission whether or not he or she admits the claim of the Complainant and if the respondent admits the claim in its entirety, the decision shall be given confirming the violation of the human right or freedom as alleged by the complainant; and the Commission shall make the appropriate orders in the circumstances in favor of the complainant.

The application of the aforementioned Rule is based on the fact that R admitted to C's claim of the violation of his right of freedom from torture and the fact that the complaint did not follow through the stages of defense and others as did. This complainant's settlement was purely based on R's admission of the claim made against him and already indicated at the beginning of this decision.

And, as already mentioned, this decision is also based on Article $53(3)$ (b) and (c) of the Constitution, which provides that the Commission may, if satisfied that there has been an infringement of a human right or freedom, order payment of compensation or any other legal remedy or redress.

In the assessment of the quantum of damages to be awarded to C in respect to the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment, one has to consider the principle that was laid down in the case of **MATIYA BYABALEMA** AND OTHERS VS UGANDA TRANSPORT COMPANY SCCA NO 10 **OF 1993**, where it was stated that:

Courts ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present.

In cases that involve the violation of the right of freedom from torture, the Tribunal has on several occasions been guided by some factors highlighted in the case of Isabirye Kiwule V. Attorney General Complaint No. UHRC/J/ 35/ 2003 which include:

- a) The right involved was non derogable - b) Innocence of C. - c) Nature of injuries sustained - d) The value of money as in the case of Matiya Biryabalema above

The aforementioned factors shall be assessed and/ or evaluated in comparison with R's offer of UGX 3,000,000/ $=$ which was accepted by C. Accordingly, given the above considerations the right that was violated by R's Agents was a serious right that no person should at any one time violate. Besides, C had entered a contract with his alleged accuser as per his evidence for supply of goods. Persons who

are under contractual obligations are protected under Article 11 of the International Convenant on Civil and Political Rights of 1966, and criminal law enforcement structures or agencies have no mandate to interfere with them. In other words, what C went through was un necessary.

Additionally, C suffered injuries especially in the chest which interfered with his health. C also clearly observed that R's offer of UGX 3,000,000 was accepted because he had nothing else to do but accept it, the matter had dragged on for a long time. Let me first talk about these first two reasons raised by C. This offer was accepted by C thinking that R's side was willing to pay it as soon as possible, but acceptance was out not out of his willingness or freely accept the offer. His submission before the Tribunal sounded as that of a defeated Complainant who had been put in a corner and forced to accept whatever R was offering. This should not be the end of Justice. This is not the spirit of amicably settling matters. Justice should not be oppressive but supportive and restorative. Settlement of matters should bring about a win –win situation. Therefore, as a Tribunal, this did not only present itself as an opportunity to properly administer justice but to counter the vice of win-lose situations in cases such as this one. Besides, the said counter offer by R of UGX. $3,000,000/$ = was never paid to C despite that fact that Counsel Namala Elizabeth Deborah informed the Tribunal on 11th March 2019 that the payment of the proposal had been approved, yet C kept on appearing before the Tribunal. Consent orders were on several

occasion prepared and forwarded to R but the same were never signed or delivered to the presiding commissioner.

Additionally, the other concern raised by C after R's counter offer was that the shilling was losing value day after day. This was an important observation which the Tribunal is taking in consideration in line with the case Mativa Biryabalema above.

Nevertheless, it is imperative for me to take into account the grave fact that R's side falsely raised C's hopes and expectations for a settlement of his complaint for a period of over eight years since 22nd August 2011 when they first offered to settle the complaint amicably. Yet, one of the reasons why amicable settlement of complaints is preferred to the path of litigation, is to get faster resolution of complaints.

In the beginning of the settlement process, Mr. Gatungo Daniel offered to settle only in respect to the violation of personal liberty and torture, this settlement was later picked up by Ms Adong Imelda who requested C to submit the same on 18th September 2012. C submitted the said proposal on to RC on that very day and R's side stayed with it for a period of three and a half years claiming that they were processing it for a settlement. It was not until 1st November 2016 that Counsel Madete Geoffrey appeared before the Tribunal and claimed that the proposal earlier made by C was too high and he requested for it to be reduced. Accordingly, C reduced the proposal to UGX 4,500,000/ $=$ but even then, several months passed and another RC appeared before the Tribunal giving C a counter offer of UGX 3,000,000/= which was never realized even after R's representatives convinced the Tribunal that the proposal had been approved, however no document was submitted to the Tribunal to satisfy itself with the same. All R's representatives were praying for were adjournments promising that they were going to follow up the settlement and/or consent orders.

Furthermore, C was even made to personally follow up the proposal with the Office of the Attorney General on three different occasions moreover there was no positive feedback obtained as was expected. This action falsely raised C's hopes and caused him to incur a lot of financial expenses without realizing any benefits, at all. This was therefore callous treatment meted out upon C, on top of the violation of the aforementioned right that he suffered at the hands of Nalufenya Police Station.

Therefore, C deserves to be compensated for all that he was made to go through in this regard, and for the losses he incurred in terms of money, time, energy and other respects.

Accordingly, I find and hold that R on a balance of probabilities violated C's right of freedom from torture or cruel, inhuman and degrading treatment or punishment as established in this decision. R is therefore ordered to pay C Ug.shs 6,000,000 (Uganda shillings Six million) as general damages and for the inconveniences and losses that C has suffered as already noted.

I therefore order as follows:

## ORDERS:

- 1. The complaint is wholly allowed. - 2. R (the Attorney General) is ordered to pay to C, Kazibwe Brian a total sum of UGX 6,000,000/= (Uganda Shilling six **million only)** as general damages for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment and for the inconveniences and losses suffered by C, all as established in this decision.

3. Each party to bear their own costs.

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

So it is ordered.

Dated At Jinja On This....................................

**SHIFRAH LUKWAGO** PRESIDING COMMISSIONER

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