Mayanja John Bosco v Attorney General (Complaint UHRC 177 of 2007) [2018] UGHRC 12 (16 May 2018)


# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA** COMPLAINT NO: UHRC/177/2007

MAYAJA JOHN BOSCO:::::::::::::::::::::::::::::::::::

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

## BEFORE HON. COMMISSIONER JOSEPH A. A ETIMA **DECISION**

The complainant, Mayanja John Bosco, alleges that on 3<sup>rd</sup> July 2007 at about 2:00pm, while he took his goats to graze, he was stopped by a police officer from Mubende police station. The officer ordered him to sit down and remove his shoes and shot 4 times in the air. That immediately after the shooting many other policemen appeared and started beating him with sticks and batons. They beat him on the back and one officer beat him on the left leg, breaking it instantly.

When their boss realized that his leg had been broken, he ordered the other policemen, to put him on their vehicle, drove away and then dumped him at Mubende Hospital. All this happened in the company of the LC 1Chairman, Mr. Senkumba. The Complainant contends that the actions committed against him by the Respondent's

agents amounted to a violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment of which he holds the Respondent vicariously liable.

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

- 1. Whether the Complainant's right of protection from torture, cruel, inhuman or degrading treatment or punishment was violated. - 2. Whether the Complainant is entitled to any remedies.

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."

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

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

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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 by this Tribunal in the matter of Fred Tumuramye -and-Gerald Bwete&Others, UHRC NO 264/1999, where Commissioner AliroOmara spelt out the elements of torture as;

- a) An act by which severe pain or suffering whether physical or mental is intentionally 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 public official or other person acting in an official capacity.

I shall therefore look for proof of these ingredients in reaching my decision.

Mayanja John Bosco, testified that on 3<sup>rd</sup> July 2007, he met a police man at Sunga trading center at around 2pm while he walked from his garden after grazing. The policeman ordered him to sit down and started shooting in the air. He was later joined by two other policemen who started beating him all over the body including on the left thigh using batons while kicking him. They ordered him to go to their pick up vehicle, however, he realized he that he couldn't move because his left leg had been broken. They instead carried him into the police pick up vehicle where he found three other men, two of whom he identified as Yoweri Ncungunyika, Sanya Senkumba while the other gentleman was unknown to him. He was taken with Sanya to Mubende Hospital and the rest were taken to the police cells. He was admitted for a week and discharged as an outpatient, however, he felt he had not fully recovered so he decided to seek traditional medicine. He also went to the African Centre for Treatment and Rehabilitation of Torture Victims(ACTV) for further treatment and that he can no longer carry heavy things and walk long distances. He reported the matter to Uganda Human Rights Commission because he was beaten, his leg broken without committing any crime.

During cross examination, Mr. Mayanja John Boscostated that he was arrested at 2pm and the police shot two bullets in the air and there were other people around. He added that he was not told anything to do with the land matter nor did he have anything to do with it. He did not recognize any policeman and he just knew they were policemen when they were arresting him. He confirmed that during the arrest, he was beaten and kicked as he was boarding the pickup and fell down and broke his leg. He confirmed that he was taken to Mubende hospital where he was treated for a week but was never given any supporting medical documents at Mubende apart from the discharge form and the scan. He went to ACTV but he is not certain of the day and the month, which he had now forgotten because this case has taken long. He also confirmed that there were people who witnessed the beating. He added that he reported the matter to the Commission when he got a little bit better and added that he could not report to the police because they were the same people who had beaten him.

Ncungunyika Yoweri, the complainant's witness stated that on 20<sup>th</sup> May 2007, some people wanted to claim ownership of land that was situatedin Sunga. That as the vice chairman of the village he asked them for documents to prove ownership of the land, however, they responded by stating that the chairman of Sunga area had accepted them a claim that was denied by the chairman. That's when the scuffle ensued. After a while, policemen came on a pick up and took him to Kabyuma trading center were the police patrol pick up had been packed. He was placed on the pickup and that is when he saw Mayanja John Bosco and they were then taken to Mubende. That Mayanja John Bosco and Sanya Senkumba were taken to hospital whilehe was detained with another gentleman identified as Paul. He further stated that at the time he saw Mayanja, he seemed to be in so much pain, he didn't want to be touched and that every time they did, he would make a lot of noise. He saw him again when he visited him in Mubende hospital where he had bandages on his leg.

On cross examination, Ncungunyika Yoweri stated that after his arrest he found Mayanja on the police pickup, he also confirmed that Mayanja was taken to hospital and that he did not see Mayanja being beaten, he only saw his broken leg.

Mubangizi Wilson, the complainant's second witness stated that on 3<sup>rd</sup> July 2007, people came to demarcate land in Sunga village, and in the process had disagreements and a scuffle ensued. The police from Mubende police station arrived after an hour and started arresting people they found in the trading center. The police shot up in the air and that's when he realized that Mayanja had been arrested. Mayanja was forced on the pickup, he saw a policeman kick Mayanja and that while he was getting on the pickup he fell down and was lifted and put back on the same pick up. The police took them and came back to pick other people. He further stated that he saw Mayanja after a week when he had been discharged from the hospital, he added that Mayanja was his neighbor so he used to see him walking using crutches for two months.

During cross examination, Mubangizi Wilson stated that he knew Mayanja and that he was not among the people fighting for the land because Mayanja was his neighbor. At the time, Mayanja had gone with him to see what was happening. He stated that he did not know how many policemen had arrested Mayanja although he witnessed the arrest. He confirmed that he saw Mayanja being beaten but did not see them breaking his leg but he saw him being carried to the police pickup vehicle.

Dr. David Kyazze, an expert witness testified that he held a bachelors of Medicine and Surgery from Makerere University and that he had been practicing since 1980, he worked with ACTV since 2004 to 2014 and that the medical document for interpretation was in respect to Mayanja John Bosco. He was first seen on 2<sup>nd</sup>July 2008 complaining about being tortured on 3<sup>rd</sup> July 2007 and his major complaint was that he was lame in the left leg and had pain in the knee joint of the same leg. The major findings of the examination were that his left thigh was deformed and left leg was shortened due to the deformity of the thigh bone, he was using crutches to aid him in walking. This means that he had a fracture which did not heal well hence causing the deformity. It had been almost one year from the time of the purported injury to the time he saw the client. He classified the injury as grievous harm since there was permanent damage.

The medical document dated 7<sup>th</sup> July 2008 was admitted in evidence as the complainant's exhibit and marked as CX1.

During Cross examination of Dr. Kyazze David, he stated that he could not tell how the complainant's deformity came about. He confirmed that the deformity was in the thigh bone and if not properly united this deformity would persist and that meant it would not go away. He further stated that while compiling a medical report, the medical personnel considers the client's history through their narration and not any other evidence. He added that it was hard to look at the patient and tell whether the injury or fracture was caused by a beating or fall.

Having analysed the evidence presented by the Complainant against the Respondent, I have to evaluate the evidence in light of the elements of torture highlighted above.

The incident complained of arose during a scuffle at Sunga Trading center, during which police personnel from Mubende police post were deployed to disperse a rowdy crowd over a land matter. The complainant at the time was coming from his garden after which he was caught in between the scuffle and as a result he was arrested by the police men from Mubende police station and it's during this arrest that the complainant states he was beaten and that on boarding the police pickup he fell down and broke his leg. The complainant's testimony is confirmed by his witness Mubangizi Wilson who witnessed the complainant's arrest and beating by the police men from Mubende Police station. The complainant's other witnessNcungunyikaYoweriwho witnessed the complainant's state at the time of arrest statedthat the time he saw Mayanja he was in so much pain, he didn't want to be touched every time they did he would make a lot of noise. In this respect, the ingredient of causing severe pain or suffering is certainly present since the Complainant sustained a fracture during his arrest by police men from Mubende police station.

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Secondly, the evidence that was adduced indicates that although the police were lawfully quelling the crowd at Sunga trading centre over a land dispute, they unreasonably beat the Complainant. The Constitution of Uganda under Article 211(3) requires the Uganda Police Force to be nationalistic, patriotic, professional and disciplined. Article 221 requires all security organizations including the Uganda Police Force "to observe and respect human rights and freedoms in the performance of their functions". Therefore, the policeman who injured the Complainant acted unprofessionally. This means that the second ingredient has been proved.

Thirdly, the Tribunal has to determine whether the policemen who carried out the act were "acting in official capacity", or were "instigated by or supported by a public official". Regarding the instant matter, I want to note that the policemen who beat the complainant were part of Mubende Police station that was at all times expected to keep law and order and maintain security; and at that material time the policemen were on duty trying to calm a rowdy crowd at Sunga Trading centre. This means therefore that the police men were individually and severally acting as servants and agents of the state, for which I find the Respondent liable for their actions.

On the other hand, whereas it is important to prove the purpose for which the severe pain is inflicted on a person as to amount to torture, I find in the instant case that the purpose for shooting the Complainant was not indicated in the evidence. I therefore find that the Complainant was subjected to cruel, inhuman and degrading treatment.

The respondent did not call any evidence to rebut that of the complainant. The respondent counsel cross-examined the complainant and all his witnesses but presented no defence witnesses to question the quality of the complainant's evidence. There was therefore no other evidence to compare with that of the complainant. The complainant's evidence was therefore largely unchallenged.

I therefore find and hold that on a balance of probabilities, the Complainant's right to freedom from cruel, inhuman and degrading treatment by Police personal attached to Mubende Police station for which I hold the Respondent vicariously liable.

### **Issue two ; Whether the Complainant is entitled to any remedies**

According to Article 53(a) (b) and (c) of the Constitution of Uganda, the Commission may if satisfied that there has been an infringement of a human right or freedom order the payment of compensation or any other legal remedy or redress.

Article 8 of the Universal Declaration of Human Rights provides that a person who claims that a fundamental right guaranteed by the Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation.

In the instant complaint the Complainant is entitled to aremedy of an award of general damages since he has proved that he was unjustifiably beaten by the Respondent's agents. The Complainant suffered inconvenience as per his testimony and even sustained a fracture according to the medical report interpreted by Dr. Kyazze, the complainant's left thigh was deformed and left leg was shortened due to the deformity of the thigh bone. He further classified the injury as grievous harm.

In considering the quantum of damages, I will take into account the nature of injuries sustained by the Complainant and the award in similar cases.

In Busingye David and Attorney General and AsimweYasin UHRC/FP/13/2006. The complainant was severely beaten by policemen and his right leg was fractured. The presiding commissioner awarded the complainant U.shs 15,000,000 as compensation for violation of the complainant's right to freedom from torture or cruel inhuman or degrading treatment or punishment.

Taking all the fore-going into consideration, I have thought it wise and reasonable to award the Complainant Ug. Shs.15,000,000 (Fifteen million Uganda Shillings only) for the violation of his right to freedom from cruel, inhuman and degrading treatment.

#### **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (the Respondent) is ordered to pay to the Complainant Mayanja John Bosco sum of Ug. Shs. 15,000,000 (Fifteen Million Uganda Shillings) as general damages for the violation of his right to freedom from cruel, inhuman and degrading treatment by State agents. - 3. The said amount, Ug. Shs. 15,000,000 (Fifteen Million Uganda Shillings) will carry interest at 10% per annum from the date hereof until payment in full - 4. Each party shall bear their own costs.

Either party dissatisfied with this decision is advised to appeal to the High Court within 30 days from the date hereof.

So it is ordered.

DATED AT KAMPALA ON THIS.................................... .......2018

JOSÉPH A. A. ETIMA PRESIDING COMMISSIONER