Kizito Richard v Attorney General (Complaint UHRC 15 of 2008) [2018] UGHRC 11 (4 April 2018)


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

## COMPLAINT NO. UHRC/15/2008

KIZITO RICHARD **.....................................**

**AND**

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

# BFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA **IRUMBA**

## **DECISION**

The Complainant (C), **Kizito Richard** brought this matter against the Respondent $(R)$ seeking compensation for the violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment, and the right to personal liberty. He alleged that on 10<sup>th</sup> October, 2007 he was arrested by police officers on allegations of theft, and detained at Wandegeya Police Station for a night and then the following day he was transferred to Kireka Rapid Response Unit (RRU) where he remained in custody until $10^{\text{th}}$ November, 2007.

He further alleged that while he was at RRU Headquarters at Kireka, he was beaten with heavy plastic batons, and also kicked with heavy boots all over his body; and that the injuries he suffered as a result of the beatings almost cost him his knee, leg and arms.

$n\epsilon$

C contended that the actions allegedly committed against him by the RRU officials amounted to violation of his right 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. Nanvuma Jane Francis denied liability.

#### $$

- $(i)$ Whether C's right to protection from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - $(ii)$ Whether C's right to personal liberty was violated by State agents. - $(iii)$ Whether R (Attorney General) is liable for the violations. - $(iv)$ 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, nor did R's Counsel (RC) file any written submission. In addition, RC did not cross-examine C and his witnesses, despite the several adjournments that were granted for her to do so. However, I also note that C still retained the duty to prove 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 Evidence Act (supra), 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 freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

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."

The International Covenant on Civil and Political Rights (ICCPR) 1996, prohibits torture or cruel, inhuman and degrading treatment or punishment under Article 7, which states that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

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.

$\overline{3}$

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

More important still, 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.

The actions committed against $C$ would constitute torture if the same were to be proved taking into account the definition of torture as provided under Article 1 of the CAT. I shall therefore evaluate the evidence adduced in order to determine whether the allegations made by C indicate actions that 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 is categorized as cruel, inhuman or degrading treatment or punishment.

In addition, I shall evaluate the evidence to determine whether the important four ingredients of torture as identifiable in the CAT definition and the current international concept of torture are proved by the evidence adduced. These four ingredients are:

- a. That the action has caused the victim severe pain or suffering, whether physical or mental. - b. That such pain and suffering was intentionally inflicted on the victim. - c. That the purpose of the action was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination. - d. That 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.

$\overline{4}$

Once the above ingredients are proved against R's agents, then it will have been established that C was indeed subjected to torture contrary to the provisions of the international legal instruments and the laws of Uganda cited above.

### **Evidence:**

C. Kizito Richard testified that in October 2007, while he was driving a company vehicle, was intercepted at a cross-road and stopped by two men in civilian clothes and who were traveling on a bodaboda. That all of a sudden, the men packed in front of the motor vehicle he was driving. That one of them pointed a pistol at him while the second man approached the co-driver's side. That on that day, he was on the road with the cashier, a one Lydia Musambi who gave the second man on the codriver's side a bag of money on the latter's orders for Lydia to surrender the same. That Lydia was carrying company money which had been collected from the company branches and which she was taking to the head office. That the men left with the bag. Since they were left with no other option, C and Lydia drove to Wandegeya Police Station to report the incident but they were instead put in the cell until one of their bosses arrived and talked to a police officer. That they were then charged with theft of company money.

C stated further that after a day or two, they were transferred to RRU in Kireka in a vehicle which had three men dressed in civilian clothes and who were also armed. That on their way one of the men hit $C$ on the elbows, wrist and joints of both arms using a pistol butt while asking him where the money was, to which C replied that he didn't know.

C added as follows:

We reached at Kireka and we were taken to Magala's office

who asked his officers to ask us where we had put the money. We were taken behind the building on the verandah. They brought canes and batons which they used to beat me and the cashier who was screaming. The first beating took about 30 minutes. I was hit with a baton and a cane on the knees, back, ankles, joints and hands. After the beating I was swollen and in intense pain. I didn't know where the money was. We were put in cells but I was put in a cell different from the one where they put the cashier. The cell where I was locked up had about 20 to 30 inmates. After about six days, two men came to the cell at around 3.00 a.m, picked me up and dragged me to the car but before I entered the car, I was blindfolded, put in the car and they drove off. When we reached a certain area, they pulled me out of the car still blindfolded and started beating me. They beat me for about two hours asking me about where I had put the money and promising to release me on condition that I told them where the money was. The men stood apart from each other while they beat me in turns. I was being pushed from one to another while being beaten with gun butts and batons. I had pain all over the body and I told the officers that I didn't have knowledge of the whereabouts of the money. I was saved by some bullets from other security officers nearby who fired two bullets and asked the RRU officers who they were. The

$\mathbf{6}$

RRU officers answered that they were fromRRU. One of the nearby security officers said: "Don't kill someone from here, we have a commander here and if you are torturing someone please talk to the commander. The officers from RRU told them that they were doing their job". The security officers nearby then fired other four bullets and the RRU operatives then drove back to RRU with me and put me in cells.

C testified further that after the torture, he could not walk on his own and as a result, he was being helped by the other inmates. That he was taken to Magala's office who informed him that he had been released but he would not go home in the condition in which he was and was therefore, further detained in the cells and told to practice walking so that he could go home. That his wife was informed and she organized transport and he was then transferred from RRU and taken back to Wandegeya Police Station.

That when he reached Wandegeya Police Station, they could not detain him any further in the cell due to his bad condition. So, he was taken to SAS Clinic and from there he was referred to Mulago hospital accompanied by a police officer. That at Mulago hospital, they plastered his left leg and he spent a night there and the following day, he was taken back to Wandegeya Police Station from where he was given a Police Bond. That as he had a medical scheme with Case Clinic, he was admitted there. That one Doctor Kigozi grafted the open wound on the knee and he was discharged after sometime. That it took him quite long to walk and as a result, he used clutches for support. That he was also treated for some time at African Centre for Treatment and Rehabilitation of Tortured Victims (ACTV).

$\overline{7}$

C displayed to the Tribunal a large scar on the right knee and other scars on his right thigh from where his skin was taken and grafted to close the open wound on the left knee. He also showed to RC other scars on the left leg, shoulders and fingers.

C also tendered in photographs and medical reports for identification purposes.

C's first witness (CW1), Sgt Mate Wakinanga testified that on or around 10<sup>th</sup> October, 2007 when he was a Custody Officer at Wandegeya Police Station, he received two suspects, a male and a female who were brought at the counter by a CID Standby Officer. That one of them was Richard Kizito and the other was Musundi Lydia. That the two were accused of having stolen cash in transit from within Wandegeya. That as usual, he searched Mr. Kizito and another female police officer searched Musundi Lydia, and they were both booked in the lock-up register and the offence was theft. That they were detained in the cells and shortly thereafter, people came and informed him that they were from RRU Kireka and demanded for Richard and Lydia who had been brought in for theft of money.

CW1 added as follows:

I refused to allow them to take away the suspects, and advised them to use the normal procedure. They went away and returned the following day. These people were not known to me, they were in plain clothes and they were all men. The following day they came to the Police Station and headed straight to the OC CID's office who came with them in my office and told me to let them sign for the suspects in the movement book and the SD at the counter, which was done thus, allowing them to take away the two suspects. Both suspects were in good health condition. To my surprise, after a period of one month on or around 10<sup>th</sup> November, 2007, I saw the two suspects being brought back to the Police Station while I watched from my office which was directly facing the counter. Shortly afterwards, the suspects were led to my office by the CID Standby Officer. I received them and locked them up in the cells. On receiving them, I was surprised by the condition of Mr. Kizito who was limping and being supported to walk by the other suspect, Lydia. I asked him what had happened because all his legs were swollen from the ankles to the thighs, and he had a very big open wound on the knee of the right leg. He showed me the whole body which had fresh injuries, and he told me that he had been tortured by the officers of RRU, which explained his condition.

CW1 stated further that C's wife later went there and the suspects were released. That the OC CID instructed the detectives to go along with the wife of Kizito and the suspect Kizito himself, to Abii Clinic in Wandegeya. That the suspect was released on bond which was signed by OC CID himself the following morning.

The Medical Expert Witness (CW2), Dr. Kyazze David testified that he was practicing medicine at Children's Clinic Kampala Hospital, and that he holds a Bachelor of Medicine and Surgery of Makerere University, obtained in 1980 and a Diploma of Tropical Medicine and Hygiene of Wits University in South Africa, obtained in 1985. That his experience included working with ACTV from 2004 to 2012 as a medical officer in charge of examining clients and giving them appropriate treatment.

That the report from ACTV was signed by him after having examined C, Richard Kizito on the 26<sup>th</sup> February, 2006 who complained of having been beaten. That C went to ACTV complaining of pain in both knees and inability to have an erection for sexual intercourse.

CW2 added that:

So when I examined him, he was in fair general condition that is, he looked fairly well and not worn out. The findings of my examination were: He had a ruptured eardrum of the right ear. Both knees were swollen and boggy (soft) and he had a grafted scar i.e. skin transplanted from one part of his body to the knee. The transplant was done to cover up the unhealed wound. In his history, he narrated how he had been beaten.

CW2 testified further that from all the findings, his conclusion was that C had been tortured and he had sustained injuries which had not healed. That he had residual pain both in the knees and the ankles. However, the eardrum had healed. That he would classify the injuries as major injuries i.e. grievous harm. That they were permanent disabilities which cause chronic pain and they usually increase because the damage on the knees may increase with time. He also stated that failure to erect was in C's history but CW2 could not prove it.

The medical report from ACTV was admitted as C's second exhibit (CX2).

As stated earlier, R's side neither produced defense witnesses nor filed submissions to challenge C's allegations, despite the several adjournments that were granted for the same. In addition, RC did not cross-examine C and his witnesses.

According to the evidence adduced by C and his witnesses, it is not doubtable that C was arrested on the material day he mentioned; and that he was also taken to RRU offices form where he was beaten severely while being asked to confess to where the money alleged to have been stolen was. C's testimony was corroborated by the evidence of CW1, who was a police officer and who in any case detained C at Wandegeya Police Station. Moreover, CW1 was the same police officer who handed over C to RRU officers who came from Kireka, and also received C back after a month when C came back having visible torture marks on his body. Therefore CW1 testified as an eye witness thus, providing credible and reliable evidence.

More so, the expert witness, too, corroborated C's evidence since the parts of the body on which C alleged to have sustained injuries are indeed the same as mentioned in the medical report i.e. the knees, ankles and ears. I have therefore found the evidence adduced by C and CW1 as being consistent with each other with regard to the allegations of torture made by C.

It is therefore established that C was indeed beaten by State agents. That he sustained severe injuries, and the purpose for the beating inflicted on him was to force him to confess to having stolen the company, money; and that the torture was carried out by public security officials.

From the evidence adduced by C and his witnesses which I find to be consistent, I am convinced that all the ingredients required to prove whether C's right to freedom from torture, or cruel inhuman or degrading treatment or punishment was violated by the State agents, are on a balance of probabilities satisfactorily proved.

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

## 2. Whether C's right to personal liberty was violated by the 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 Constitution prohibits arbitrary arrests and detention, and also 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 or 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 RRU operatives on a date he could not recall but in October 2007, and taken to RRU in Kireka. That he was detained there though he did not clarify how long he remained there.

CW1 who was also a police officer and who effected C's detention at Wandegeya Police Station, confirmed that he received C and Lydia Musambi at the counter where they were first brought by a CIDs Standby Officer on 10<sup>th</sup> October, 2007. That he booked them in the lockup register and after one day, RRU operatives went and took them to RRU in Kireka, where they were detained. He also confirmed that C was brought back to Wandegeya Police Station by the RRU operatives after about one month on or around 10<sup>th</sup> November, 2007.

In addition, the RRU lockup register was tendered in as an exhibit and marked **CX1**. It revealed that C was in indeed in detention at the said facility from 11<sup>th</sup> October, 2007 to $8<sup>th</sup>$ November, 2007. This therefore confirmed that C was in detention for 27 days without being taken to court.

I am therefore convinced that C was indeed arrested and detained as alleged since the evidence adduced by C himself is consistent with that of CW1 and the lockup register in relation to the time and duration of detention.

The law is that once a Complainant proves to the satisfaction of the tribunal that he was arrested by the Respondents' agents, the burden shifts to the latter to prove that the arrest and detention was justifiable, and this was asserted in the case of **Sekaddu** v Ssebadduka (1968 E. A 212).

In the instant case, R's side did not call any evidence to rebut that of C, neither did they make any submissions to challenge C's claims.

Therefore, I find that on a balance of probabilities, C's right to personal liberty was violated by the State agents. Therefore, C's claim in this second issue, also succeeds.

## 3. Whether the Attorney General is liable for the violations.

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

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

Accordingly, in the instant case, R is vicariously liable since the RRU operatives who violated C's rights were public officers and thus, it is deemed that they 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.

Article 53(2) of the same Constitution gives the Uganda Human Rights Commission (UHRC) 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 servants/agents violated C's right to protection from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty. Therefore, C is entitled to compensation by R on behalf of 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 violation of his right to personal liberty, and that it was the practice of the Tribunal to award Ug. Shs $2,000,000=$ (Uganda Shillings Two Million) for every seven $(7)$ days of unlawful confinement.

$C$ in the instant case was in detention for 27 days. The first two days however, were lawful thus, leaving 25 days of illegal detention. Therefore, following the criteria stated in the aforementioned precedent case, C deserves to be compensated for 25 days at the rate of Ug. Shs. 2,000,000/ $=$ per seven days, giving him Ug. Shs.

$7,000,000=$ . However, taking into account the time lag of ten years since C's right was violated in 2007, as well as the current economic conditions in the country, I am raising the said amount to Ug. Shs. $7,500,000/$ = (Uganda shillings seven million five hundred thousand only).

With regard to the violation of C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment, I am taking into consideration

the case of Busingye David and Attorney General 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 to the extent of sustaining a fracture of his right leg by Police Officers at Bulindi Police Post, and she awarded him Ug. Shs15,000,000/= (Fifteen Million Shillings only).

In the instant case, C's injuries were classified as grievous in nature. Furthermore, the expert witness also stated that the injuries caused chronic pain and this was likely to increase because the damage on the knees would most likely to increase with time. Therefore, C's injuries and their effect on him are similar to those suffered by the Complainant in the precedent case cited above.

Therefore, I award C Ug. Sh. 15,000,000/= (Fifteen Million Uganda Shillings) as adequate compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

Accordingly, I order as follows:

## **ORDERS**

- 1. The complaint is allowed. - 2. R is ordered to pay to C, Kizito Richard a sum of Ug. Shs.7, $500,000/$ = (Uganda Shillings Seven Million, Five Hundred Thousand) as compensation for the violation of his right of personal liberty. - 3. R is further ordered to pay to C, Kizito Richard a sum of Ug. Shs. 15, **000,000/=**(Uganda Shillings Fifteen Million) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 4. The total sum of **Ug Shs.22, 500,000/=** (Uganda Shillings twenty two Million, Five Hundred Thousand) shall carry interest at 10% per annum from the date of this decision till payment in full. - 5. Either party if dissatisfied with this decision or any part thereof may appeal to the High Court within $30$ days from the date of this decision.

So it is ordered.

.....day of. M. 2018. Dated at Kampala on this ....

HON. DR. KATEBALIRWE AMOOTI WA IRUMBA

PRESIDING COMMISSIONER

Delivered by Kilta Morein, Stheo/ Registrav<br>in the presence of the Companient on the<br>Attripoid 2018 Addie