Magemeso Hannington v Attorney General (Complaint UHRC 19 of 2013) [2018] UGHRC 1 (14 May 2018)


# THE REPUBLIC OF UGANDA

# IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

### **HOLDEN AT JINJA**

#### **COMPLAINT UHRC NO. JJA/19/2013**

MAGEMESO HANNINGTON:::::::::::::::::::::::::::::::::::

#### -AND-

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

# [BEFORE HONOURABLE COMMISSIONER STEPHEN BASALIZA]

#### **DECISION**

The Complainant Magemeso Hannington brought this complaint before the Commission alleging that in the month of August 2011 he was arrested by police officers attached to Kibale Police Post and Namutumba Central Police Station on allegations of breaking and entering. That upon his arrest, he was severely beaten by the same police officers using batons on his head and all over his body thereby sustaining serious injuries on his eyes. That he was detained at Namutumba Central Police Station for four (4) days before he was arraigned in court.

#### **Issues**

The following issues were framed and agreed upon by the parties:-

- 1. Whether the Complainant's right to freedom from torture or cruel, inhuman, degrading treatment or punishment was violated? - 2. Whether the Complainant's right to personal liberty was violated - 3. Whether the Respondent is liable? - 4. Whether the Complainant is entitled to any remedies.

#### The findings by the Tribunal:

Issue 1: Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.

Freedom from torture, or cruel, inhuman or degrading treatment or punishment is guaranteed by Articles 24 and 44(a) of the Constitution. Article 24 prohibits its violation while Article 44(a) declares the freedom non-derogable. No excuse whatsoever is therefore allowed in law for the freedom to be derogated from.

The Constitution however has merely guaranteed and protected the freedom without defining it. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, (the CAT) which is ratified by Uganda does render a definition of "torture" as well as what constitutes other cruel, inhuman or degrading treatment or punishment. This Tribunal has in many of its decision adopted and applied this definition. The CAT 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 obtaining from him or a third person information or a confession punishing him for an act he or a third person has committed or suspected of having committed or intimidating or coercing him or a third person 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 any other person acting in an official capacity".

The CAT spells out four main ingredients of torture as: whether the action has caused the victim severe physical or mental pain or suffering, whether such pain or suffering was intentionally inflicted on the victim, whether the purpose of the action was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination and 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.

Other acts of cruel, inhuman or degrading treatment or punishment are defined as being similar to what constitutes torture except that they are less severe than torture – See Article 16 of the CAT.

The complainant Magemeso Hannington testified that in August 2011, Police officers led by the O. C Kibaale police post forcefully entered his home where he was resting and started beating him on the head, back, chest and waist on allegations of theft. That he was then put onto a police vehicle where the policemen continued to beat him on the head, chest and back; taken to Namutumba police and detained there for 3 days before he was taken to court.

Upon cross examination, the Complainant testified that he refused to open for the police when they knocked on his door because they did not properly identify themselves and were not in the company of the LC 1. Counsel for the Respondent put it to the Complainant that he was only treated for hernia which the Complainant countered stating that he was treated for torture.

The complainant also produced several witnesses including the following;

Jaffer Ally (CW1), a senior medical clinical officer at Busembatya Health Centre VI-Busembatya Town Council testified before the Tribunal and interpreted Complainant's medical documents from the said health clinic which were tendered and accepted into evidence as Exhibit1. That the medical form was made on 17<sup>th</sup> August 2011 for the Complainant, who presented with headache, backache and body pain; with a history of being beaten. The patient was admitted for three days on 17<sup>th</sup> August and discharged on 19<sup>th</sup> August 2011.

Upon cross examination, CW1 further revealed that the Complainant was treated for a period of eight days to which Counsel for the Respondent insinuated that the Complainant's pain from other causes which he did not substantiate or adduce evidence of the same.

The Complainant's second witness Ms. Namutamba Regina (CW2) who is also the complainant's wife testified that sometime in 2011 while they were sleeping, the police knocked at their door at around 2:00am and started beating the Complainant using sticks and iron bars on the back, chest and the head and thereafter the Complainant was taken by the police to Namutumba police while she remained at home. That she next saw the Complainant after three days, he appeared weak and complained of pain all over his body.

In light of the definition of torture, the Complainant claimed that he was subjected to severe pain and suffering when the police officers of Kibale police post and Namutumba Police station arrested and severely beat him all over the body with batons. His evidence was corroborated by documentary evidence in form of medical records which were interpreted by CW1 and showed that the Complainant was treated with injuries consistent with assault. The testimony of CW2 also corroborated the Complainant's evidence to the effect that the Complainant was beaten by the police. She stated that she was with the Complainant on the night when the police broke into their home and started beating the Complainant using sticks and iron bars on the back, chest and the head.

By the above evidence, the Complainant has proved that he was beaten by police. The Complainant also produced evidence inform of a lock up register which shows that he was detained him at Namutamba Police Station from 12<sup>th</sup> August 2011.

The above notwithstanding, I find that the Complainant has not provided evidence to support all the elements of torture earlier on highlighted. The purpose for which he was beaten is not clear. I therefore find that the actions of the police meted upon the Complainant amounted to cruel, inhuman or degrading treatment or punishment.

#### Issue 2. Whether the Complainants' right to personal liberty was violated:

The right to personal liberty is protected under Article 23 of the Constitution. It is not an absolute right, it can be derogated from when any of the circumstances listed in Article 23(1) of the Constitution does exist. No one may therefore be deprived of personal liberty except in the limited circumstances spelt out in the Constitution. The law prohibits arbitrary arrests and detention. The same Constitution spells out procedural guarantees to prevent the abuse of persons under arrest or detention. Thus Article 23(4) (b) requires that a person arrested upon reasonable of having committed or above to commit a criminal offence, must if not earlier released, be produced in court within 48 hours.

The burden of justifying an arrest or detention lies with the person or authority effecting the arrest or detention. This is because the right to personal liberty is a positive right that may be derogated from under limited circumstances. Once the Complainant has proved he was arrested and detained by the State. After that the Respondent must produce evidence to justify the arrests and detentions citing one or more of the grounds listed under Article 23(1)

## ORDER

- 1. The complaint is allowed - 2. The Respondent pays the Complainant a sum of UGX. 3,500,000/- (Three million five hundred thousand Uganda Shillings) as compensation for the violation of his right to freedom from cruel, inhuman or degrading treatment or punishment. - 3. The said sum of UGX. 3,500,000/- (Three million five hundred thousand Uganda Shillings) shall attract interest at a rate of 10% per annum from the date of decision until payment in full.

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

Dated at JINJA this.................................... $\sqrt{1}$ 2018.

**STEPHEN BASALIZA** PRESIDING COMMISSIONER