Makayi Alex v Attorney General (Complaint UHRC 179 of 2007) [2016] UGHRC 8 (14 September 2016)


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT KAMPALA COMPLAINT NO: UHRC/179/2007

MAKAYI ALEX ::::::::::::::::::::::::::::::::::::

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

# BEFORE COMMISSIONER JOSEPH A. A ETIMA

### **DECISION**

The Complainant Makayi Alex lodged this complaint with the Commission on the 20<sup>th</sup> November 2007. He alleges that on 13<sup>th</sup> August 2007 while he was standing at his work place at Mengo Kisenyi along Musajjalumbwa road, a saloon car approached him and he was called by the driver. That he was ordered and forced to enter into a car that had persons dressed in civilian clothes armed with pistols and guns. He further alleges that he was beaten by the men in the car to the extent that he could not walk and was later taken to central police station where he was detained on allegations of robbery until the 25<sup>th</sup> August 2007 when he was released on police bond. The Complainant contended that the actions allegedly committed against him by the respondent's agents amounted to a violation of his right to freedom from torture, and personal liberty and holds the respondent vicariously liable.

The issues of contention to be determined by the Tribunal are;

- 1. Whether the Complainant was subjected to torture, cruel, inhuman or degrading treatment or punishment - 2. Whether the Complainant's right to personal liberty was violated - 3. Whether the Complainant is entitled to compensation

In determining these issues, the burden of proof lies with the person asserting that his or her rights have been violated, who in this case is the complainant. This is in line with Section 101 (1) of the Evidence Act, Cap 6 Laws of Uganda, which provides 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 those facts exist."

**Section.102 of the Evidence Act further provides 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."

Whether the Complainant was subjected to torture, cruel, inhuman or degrading treatment or punishment

The Universal Declaration of Human Rights (UDHR), 1948 under Article 5 provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1996 absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

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.

The Constitution of the Republic of Uganda 1995 under Article 24 prohibits subjection of anyone to any form of torture or cruel, inhuman and degrading treatment or punishment. This right is provided for as a non derrogable right under Article 44.

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until 18<sup>th</sup> September 2012, upon the commencement of the Prevention and Prohibition of Torture Act 2012. However, since law cannot be applied retrospectively, the only definition that can be used in this matter is the one provided by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, which Convention Uganda ratified.

**Article 1** there of states that:

"... torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental *to lawful sanctions".*

The definition in Article 1 of the CAT has been applied in Uganda in the matter of Fred Tumuramye V<sup>s</sup> GeraldBwete and Others UHRC NO 264/1999, where Commissioner Aliro Omara spelt out the elements of torture as follows;

- a) An act by which severe pain or suffering whether physical or mental is intentionally $a$ inflicted on a person. - b) For a purpose such as obtaining information, or a confession, punishment, intimidation, coercion or for any reason based on discrimination. - c) The act is inflicted by or at the instigation of or with the consent or acquiescence of a $c$ public official or other person acting in an official capacity.

The Complainant Makayi Alex testified before this tribunal that on 13<sup>th</sup> August 2007 at 7:30 am while at his work place at Mengo Kisenyi along Musajjalumbwa road in Kampala, a salon car approached him with six men of which one had hand cuffs, he was called to the car and ordered to enter. That as soon as he entered the car, the men started beating him while driving towards their station Sosho near Kabaka's place. That when they reached Sosho he was taken out of the car and closed in a small room beaten using batons on his back, knee joints and right ankle while being told to surrender a white motor cycle which was parked near his work place. When they realized that he was getting weak, they took him to Central Police Station Kampala where he spent a week before he was released on bond. He was taken by his wife to receive medical treatment from Mulago Hospital and City Council hospital in Kisenyi. He concluded by stating that he later got to know that the men who beat him were Wembley operatives.

During cross examination the complainant stated that they were six occupants in the car all dressed in civilian clothes with five armed with pistols as well as a big gun and they drove him to Basima house in Kisenyi. He maintained his statement that he was beaten with a baton on the knees and arm joints on suspicion that he had stolen a motorcycle. After two hours of this ordeal, he was taken to Central Police Station Kampala where he spent a week but never taken to court. That he was released on police bond and taken to Mulago hospital.

Sarah Mutonyi the Complainant's witness stated that in 2007, she went to the Complainant's work place in Kisenyi and did not find him but she was told by the neighbours that he had been taken by Wembley operatives. She then went to wembley offices in Kireka but did not find him but she later found out that he had been detained at Central Police Station Kampala. That when she went to Central police station she saw the complainant and observed he could not walk at all. She added that when he was released she took him to Mulago Hospital where he spent one and a half months. The complainant's witness died before being cross examined.

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I find that the Complainant was consistent in his statement that he was beaten by five men dressed in plain clothes as he was being interrogated on suspicion of theft of a motorcycle. However, he didnot produce any evidence to support this statement hence it remains a mere allegation. Moreso his only witness Sarah Mutonyi, did not witness the beating up of the complainant but rather found the complainant in an unhealthy state while he was detained at Central police station in Kampala. The complainant's witness did not recall the date of the incident either and did not witness the complainant being beaten.

Be that as it may on a balance of probabilities, I find no evidence to support the complainant's allegation and therefore I cannot find the Respondent responsible for the violation of the complainant's right to protection from torture, cruel, inhuman or degrading treatment.

# Whether the Complainant's right to personal liberty was violated;

The right to personal liberty is a positive right protected by human rights law at International and Regional levels as well as the Constitution of the Republic of Uganda 1995.

The Universal Declaration on Human Rights Article 3 provides that everyone has the right to Liberty and security of person.

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

Article 23 of the Constitution of the Republic Uganda 1995 provides for the protection of personal liberty.

Article 23 (1), in particular, caters for circumstances under which a person can be deprived of the right to personal liberty. Article 23 (1) (c)specifically provides that a person's right to personal liberty can be deprived for purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

Additionally, Article 23(4) (a) and (b) of the Constitution are to the effect that a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws 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 his arrest. This same legal requirement is explicitly stated under **Section 25 of the Police Act Cap 303.**

The Complainant testified that he was arrested by plain clothed men on 13th August 2007 at 7:30 am while at his work place in Mengo Kampala. That he was severely beaten by the arresting persons and on realizing that he was getting weak they took him to Central Police Station Kampala where he spent a week and later released on bond and that he was never produced in court.

During cross examination the complainant stated that he was arrested by five men dressed in plain clothes and all armed with pistols. That he was beaten while in the car and later taken to basima house where he was again beaten severely with batons. He added that he spent two hours at Basima house and after taken to Central police station Kampala where he was detained. He reiterated that he was released on bond and never produced in court.

The complainant's witness Sarah Mutonyi testified that in 2007 she went to the complainant's work place in Kisenyi and did not find him. She added that she found him detained at the Central Police Station Kampala.

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A letter dated $24^{\text{th}}$ July 2014 that was admitted in evidence as the complainant's exhibit and marked as CX1. It is stated in this letter that the Commission carried out investigations on 8<sup>th</sup> May 2008 at Central police station Kampala vide station diary no SD $03/08/07$ and discovered that the Complainant was detained there from $13^{th}$ to $25^{th}$ August 2007 when he was released on police bond.

From the evidence above it has been confirmed that the complainant was detained at Central Police Station Kampala on suspicion of theft of a motor cycle from the 13<sup>th</sup> to the 25<sup>th</sup> of August 2007. This means that the complainant was detained for thirteen days his initial two days detention were lawful he was therefore in illegal detention for eleven days contrary to the provisions of Article $23(4)(b)$ of the constitution and hence a violation of his right to personal liberty. The Respondent's agents were acting in the course of their employment as agents of government and according to Article 119 of the Constitution of Uganda 1995 the functions of the Attorney General among others is to represent the Government in courts or any other legal proceedings to which the government is a party thus the Respondent is vicariously liable for those actions.

#### **Whether the complainant is entitled to compensation**

Under Article 23(7) of the Constitution of the Republic of Uganda, a person unlawfully arrested, restricted or detained by any other person or authority, shall be entitled to compensation from that other person or authority whether it is the state or an agency of the state or other person or authority

Article 53 (2) the Constitution empowers the Uganda Human Rights Commission, where it has been satisfied that there has been an infringement on anybody's human right or freedom, to order payment of compensation or any other legal remedy or redress.

In Bakaliraku Vincent & Anor. -And- Attorney General Complaint No. UHRC 316/2004, it was held that it is the practice of this tribunal, referring to precedents of High Court, to award complainants U. Shs2,000,000= (Two Million Shillings) for illegal detention of every seven $(7)$ days.

However, I am also inclined to take into account the principle established in the case of MATIYA BYABALEMA AND OTHERS vs UGANDA TRANSPORT COMPANY, SCCA, 18 of 1993, in which his Lordship Odoki JSC held that: Courts out to assess the amount of damages taking into account the current value of the money in terms of what goods and services it can purchase at present.

Accordingly, taking into account the factors and considerations I have just discussed, and therefore seeking to give reasonable value to the amount of money, I am awarding Makayi Alex U. Shs $6,000,000=$ (Six million Uganda Shillings) for eleven days of illegal detention.

# ORDER:

- 1. The complaint is allowed in part. - 2. The Respondent is ordered to pay the Complainant, Makayi Alex Ug. shs 6,000,000 (Six million Uganda Shillings) as compensation for the violation of his right to Personal Liberty. - 3. Interest at 10% per annum to be paid on the mentioned amount calculated from the date of this decision until payment in full. - 4. Each party shall bear their own costs - Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date hereof.

# DATED AT KAMPALA THIS

DAY O

(PRESIDING COMMISSIONER)

JOSEPH AA. ETIMA