Lotee James and Another v Attorney General (UHRC/ MRT/ 58/2008) [2016] UGHRC 31 (2 May 2016)


# **THE REPUBLIC OF UGANDA**

# **THE UGANDA HUMAN RIGHTS COMMISSION**

# **UHRC/ MRT/ 58/2008**

# **LOTEE JAMES, LOUMO LOPEYOK:::::::::::::::::::::::::::COMPLAINANTS.**

## **AND**

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

## **DECISION**

#### **Brief facts**

The complainants Lotee James and Lopeyok Loumo all of Koitete Village, Nachukan Kalokengel parish, Lotome sub-county in Moroto District, allege that on September 8lb 2008, the UPDF soldiers who had gone to their village for the cordon and search operation arrested them and took them to Lotome UPDF Barracks where they were tortured and stayed there for five days before they were released.

#### **Issues**

- *1. Whether the complainants' right to protection from torture, cruel, inhuman and degrading treatment or punishment was violated by the respondent's servants.* - *2. Whether the complainants' right to personal liberty was violated by the respondent's servants* - *3. Whether the complainants are entitled to any remedies.*

Flearing of this case started on 13th Sept 2012 and was closed for Decision on 19lb Sept 2013. The complainants together with their witnesses gave in their evidence in chief and they were cross examined by the Counsel ofthe respondent Mr. Eric Lumbe while the Commission Counsel re-examined them before the case was closed for defense. Twice this matter was adjourned to allow the respondent to present defense witnesses but in vain, hence filed submissions

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However it's also important to note here that the burden of proof against the Respondent lies with the person who alleges that his/her rights were violated on a balance of probabilities, failure to do so the case does not hold merit. This is in line with Section 101 (1) ofthe Evidence Act Cap 6 ofthe Laws of Uganda and Rule 23(1) ofthe Uganda Human Rights Commission Procedure Rules, 1998.

I now turn to the Issues

*1. Whether the complainants' right to protection from torture, cruel, inhuman and degrading treatment or punishment was violated by the respondent's servants.*

The Convention Against Torture (CAT) and other Cruel Inhuman and Degrading Treatment or Punishment, 1984 defines "torture" as;

*"An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtainingfrom him or her or a third person information or confession punishing him for an act he or she or third person has committed or suspected ofhaving committed or intimidating or coercing him or a third personfor any reason based on discrimination ofany 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 any other person acting in an official capacity"*

Torture is farther prohibited under the Constitution of Uganda under Articles 24 which provides that;

*"No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment orpunishment*

And under Article 44 of the same Constitution, a right to freedom from torture, cruel inhuman and degrading treatment is considered as a non derogable right.

Farther Article 5 of the African Charter on Human and People's Rights 1986 which Uganda has ratified provides that;

*"Every individual shall have the right to the respect ofthe dignity inherent in a human being. All forms of degradation of man particularly torture, cruel, inhuman or degrading treatment andpunishment shall be prohibited"*

While Article 7 of the International Convention on Civil and Political Rights to which Uganda is a signatory provides that;

*"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment "*

The court in the case of**Ireland V United Kingdom (1978)2 EHRR 25,** differentiated torture from cruel, inhuman degrading treatment or punishment by noting that torture, requires a deliberate inhuman treatment causing very serious and cruel suffering, whereas inhuman treatment or punishment involves the infliction of intense physical and mental suffering which reaches a minimum level of severity and degrading treatment requires ill treatment designed to arouse in victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.

Torture is further defined by the Cambridge International Dictionary of English at page 1539 as:

*"An act of causing great physical pain in order to persuade someone to do something or to give information or as an act of cruelty to a person or an animal "*

Furthermore torture is prohibited under the Ugandan Constitution under Articles 24 and 44, which considers torture, cruel, inhuman and degrading treatment as a non-derogable right. It is further outlawed by other international human rights instruments to which Uganda is signatory as already enumerated above, to include the Law of Tort under the torts of Assault and Battery. It is also outlawed by the penal code which considers these acts oftorture as criminal.

Having discussed the law on Torture, Cruel or Inhuman and Degrading Treatment or Punishment, the complaint of Lotee James and Lopeyok Loumo may constitute torture if the same allegations were proved, <sup>I</sup> shall now consider the evidence of the complainants and their witnesses in relation to the ingredients of torture pointed above, to a certain whether the rights ofthe complainants were truly violated as claimed.

The 1st complainant Lotee James testified that it was on 12 September 2008 at 3:00 am when the UPDF soldiers on cordon and search, came to their village of Nachukon and surrounded it till morning, they ordered them to come out while they searched the kraal for illegal guns and bullets which the soldiers did not get. After the search, 12 of them were taken to Naromit Military barracks where they were put in the cell, and taken out **3 |** <sup>P</sup> a g e

one by one to the pitch, that contained tamarind sticks prepared for beating the culprits. He was beaten all over his body for allegation of having a gun. And after the beating, they were taken back to the cells and the following morning the same thing happened. The complainant testified that, they stayed in the barracks for 7 days, but were the tortured on the first two days while the rest ofthe days, they did not even get food from their relatives. They were only rescued on the intervention of one Logira a UPDF soldiers who interrogation them and after released all the twelve of them, Lopeyok inclusive and later sought medical treatment from Lotome Health Centre since they were in a lot of pain and had swollen buttocks, before he lodged the case to the Uganda Human Rights Commission, Moroto and Lotome Police. The complainant also went to Iriri Health Centre for further treatment. Lotee showed to the tribunal the scars on his back and buttocks and stated that as the result ofthe torture, he urinated blood for about 5 days and that his life was in danger hence would like to be compensated.

While the second complainant Lopeyok, Lorimo aged 16 years from Loluk village was a P.4 Pupil of Lorengedwat primary school, Lotome Sub County, Moroto district by the time of hearing this case.

He testified that, it was on 12th September 2008 at about 3.00 a.m when UPDF soldiers surrounded their village Nachukaon cordon and search operation; they ordered them to come out of the village. Afterwards, the children, women and the elderly were told to go back to the kraal while twelve ofthem were taken to the barracks and put them to the cells where one by one they were called out and beaten in the ditch while being demanded for the guns before they were returned inside the cell.

The following day, they were still tortured. For the 7 days they stayed in the barracks, they were only beaten for two days.

After they were released by the army officer called Logira they went to Lotome Health Centre for treatment although he does not have any medical forms since they were taken away by the warriors.

The complainants' witness Lemukoi Lopeyok of 50 years of age by the time of hearing this matter and from Nachuka village, Lotome Sub county, Moroto district, testified that it was on 12th September 2008 when soldiers came and surrounded their manyata at about 3.00 a.m. and ordered them to come out in the morning and they divided people in 5 groups according to ages and sex.


That he was among the 12 who were taken to the barracks and when they reached there, the soldiers asked for guns while beating them, they stayed in the barracks for 7 days before they were released but each of them was beaten one at a time for period of two days.

During cross examination the witness added that Lotee was badly beaten and the buttocks were beginning to rot hence it was the reason he lodged the complaint before the commission

**Expert Witness** Kawonye Peter, from Lotome sub-county, Napak district, is a Senior Clinical Officer attached to Lotome Health Centre III, with a diploma in Clinical Medicine and Community Health, testified that the documents he explained were photocopies of medical treatment notes of Lotee who sought health services from Lotome Health Centre III, on 18th September 2008, No. 934/9 as an outpatient at that time with a Complaint of having been beaten by soldiers hence pain in neck, buttocks and back. An examination was carried out, the general condition was fair, the patient did not have anemia, or dehydration, however the local examination done on the buttocks, found large septic wounds on them. The treatment was prescribed PPF for 3 days, injection diclofenac and referral to Matany for subsequent management. The patient also went to Iriri Health Centre III on 29/09/2008, with complaint of chest pain and he was treated.

On cross examination in relation to whether the wounds sustained by Lotee in the buttocks, were severe, the Expert Witness responded that it was severe, that is why they referred him for further management in the referral hospital - Matany. But although the wounds were severe, it was not life threatening.

The second complainant did not provide the medical documents, because they were taken away by the warriors, but have a medical document from Lotome, confinning treatment.

The 3rd witness was Korobe Achai, who testified that it was on 28/09/2008 at about 3:00 a.m. when the UPDF soldiers came and surrounded the manyatta and early morning ordered them to come out while they searched the manyatta for illegal arms before they took them to the barracks where they were beaten one by one and asked to produce guns. The UPDF punished and lashed them in a hole dug within the barracks. He together with Lotee, were badly beaten by 3 soldiers using buttons and sticks. The soldiers beat his ankles and the limbs while demanding for guns. They stayed in the barracks for about one week then they were released. Lotee, was beaten by two soldiers

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in turns in his ankles, limbs and buttocks and he got injured severely; after Lotee was released, he went for treatment in Lotome Health Centre III. Sometimes Lotee complains of internal pain which they suspect is due to the beating. At the barracks, they did not get any food, it was the witness who brought for them food.

The testimonies of the two complainants in relation to their torture allegation is so consistent with one another on the account of the event on the fateful day and this is corroborated with the evidence of their witnesses Achia Korobe whose statement and evidence in chief is similar in material fact to that of the two complainant. He would have no intentions oftelling my tribunal lies since he himselfwas a victim but preferred to be a witness to this case. The evidence adduced by the two complainants to support their torture allegation is consistent and is corroborated by the evidence of the expert witness who explained the medical report for Lotee James. Lopeyok too had vivid scars on his body which was evidence ofthe beating.

Lienee considering the evidence that has been adduced, it show that the two complainants were tortured and suffered from severe pain both physically and mentally and the pain was intentionally inflicted on them for purposes of obtaining information from them on the whereabouts of illegal guns. The pain and suffering was meted on them by or at the instigation of or with the consent of UPDF soldiers who are public officers who were in the area carrying out cordon and search operations for illegal guns and since they were in the course of their duty, the Attorney General then is liable for their offense.

I contend that the respondent agents violated the complainants' rights to protection against torture, cruel, in human and degrading treatment or punishment.

# **2.** *Whether the complainants' right to personal liberty was violated by the respondent's servants*

It's important to note that, the right to personal liberty is a settled law, in that once the complainant proves that he was arrested and detained hence violating his/her rights to personal liberty, the burden of prove shifts to respondent, that the arrest and the detention was lawful and justifiable

The right to personal liberty is protected by the Constitution ofthe Republic of Uganda 1995 and various International Human Rights Instruments and the Law of Tort under the Tort of False Imprisonment.

Richard Clayton and Hugh Tomlinson in their book, the Law of Human Rights, Vol. 1, page 455 states that;

*"The tort offalse imprisonment is committed by someone who intentionally subjects another to total restraint of movement either by actively causing his confinement or preventing him from exercising his privilege ofleaving the place where he is. Any interference with liberty is unlawful unless the person responsiblefor the imprisonment can show that it isjustified"*

The right to personal liberty is an inherent right and must not be denied or interfered with unless with exceptions in Article 23(1). It is not the duty of the complainant to prove that his arrest and detention were unjustified or unlawful; all the complainant must prove is his/her personal liberty was infringed upon through arrest and detention and that other procedural requirements under Article 23 were breached, the burden of proofthat the arrest and imprisonment was justified shifts to the respondent.

Article 23 (1) ofthe Constitution ofthe Republic of Uganda provides for circumstances under which rights to personal liberty can be lawfully deprived. Article 23 (1) c, provides that the deprivation should be for purposes of bringing a person before court in execution of a court order or upon reasonable suspicion that, the person has committed or about to commit a criminal offense.

The International Convention on Civil and Political Rights (1966) under Art 9(1); provides that everyone has the right to liberty and security of persons. No one shall be subjected to arbitrary arrest or detention.

While the African Charter on Human and People's Rights provides under Art 6 that every individual shall have the right to liberty and to the security of persons. No one may be deprived of his freedom except for reasons and conditions previously laid by law.

Art 23(4) (a) ofthe Constitution ofUganda provides that;

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"A person arrested or detained upon reasonable suspicion of his or her having committed or about to commit a criminal offence under the law of Uganda, shall if not earlier on released be brought to court as soon as possible but in any case not later than 48 hours from the time of arrest."

It therefore follows that from the above references, the detention for whatever reason should not exceed 48 hours before production of such a person before courts of law or a person be released.

In the instant case of the alleged violation of the right to personal liberty, the following questions shall be answered;

- Whether the complainants were actually arrested or detained; 1. - Whether the arrest or detention was permissible under clause $1(a)$ to $1(h)$ of $2.$ Article 23 of the constitution; and - $3.$ Whether any of the procedural requirements under Article 23 of the Constitution was infringed?

I shall now look at the evidence adduced before my tribunal.

The testimonies of the complainants and their witnesses is that they were arrested on 12<sup>th</sup> Sept 2008 and only got released on 17<sup>th</sup> Sept 2008 on the intervention of one UPDF soldier, this answers the first issue whether the complainants were actually arrested.

They were detained in the barracks from $12^{th}$ -17<sup>th</sup> Sept 2008. The fact is clear here that the complainants were detained for more than 48 hours stipulated by law and no procedural processes were followed to produce them before any courts of law.

Hence I contend that the respondents agents violated the complainants rights to personal liberty as provided for in article $23(4)(b)$ and $23(2)$ of the 1995 constitution and hence the respondent is vicariously liable.

# 3. Whether the complainants are entitled to any remedies

Article $50(1)$ of the constitution entitles a party to a violation to apply to a competent court for redress which may include compensation

The Constitution of the Republic of Uganda in Article 53 (2) (b) & (c) states: The Commission if satisfied that there has been an infringement of a human right or *freedom, order:*

(b) Payment of compensation or

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*(c) Any other legal remedy or redress*

Similarly, *Article 8 of the Universal Declaration of Human Rights* provides that *everyone has the right to an effective remedy by the competent national tribunals for acts violating thefundamental rights granted him/her by the constitution or by law.*

Having held that the complainant right to freedom from torture, cruel, inhuman and degrading treatment or punishment and their rights to personal liberty were violated by the respondent's servants, it goes without say that the complainants are entitled to compensation.

## **Order:**

- 1. The complaint is allowed. - 2. The respondent to pay a sum of (U) Sh.4,000,000/- (Four million shillings only) to the complainants as general damages for violation of their rights to freedom from torture, cruel, inhuman and degrading treatment or punishment and their rights to personal liberty, each to receive 2,000,000/- (Two million shillings only). - 3. Interest at the rate of 10% per annum to be paid on the above sum of Shs.4,000,000/= (Four million shillings only) to Lotee James and Lopeyok Loumo calculated thirty days from this Decision until payment in full. - 4. Either party may appeal to the High Court of Uganda if not satisfied with the Decision ofthis Tribunal within 30 days from the date ofthis Decision.

**DATED AT MOROTO, THIS...... 2...... DAY OF........ MM........201£**

**Violet Akurut Adome**

# **Presiding Commissioner**