Mbyemire Wilson v Attorney General (Complaint UHRC 83 of 2006) [2016] UGHRC 9 (23 November 2016)

Full Case Text

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## THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL

#### AT KAMPALA

## **COMPLAINT NO. UHRC/83/2006**

**\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* MBYEMIRE WILSON**

**AND**

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

## BEFORE HONOURABLE COMMISSIONER JOSEPH A. A. ETIMA

#### **DECISION**

The Complainant lodged this complaint against the Respondent seeking compensation for alleged violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. He alleged that on 8th April, 2006 while on his way to bank money amounting to Ug. Shs. 4,200,000/=, he was ambushed by thugs who put him in a vehicle. That he became unconscious and that when he gained his senses, he found himself at Orthodox Church Hospital in Namungoona. That his boss Ruranganwa was contacted and that he paid the hospital bill and took him to his home. That on 9th April, 2006, two CID officers including Sgt. Matata arrested him and took him to Taxi Park Police Post. That his boss Ruranganwa came and ordered Sgt. Matata to beat him until he confessed where the money was. That Sgt. Matata beat him all over his body and ribs using a bicycle lock for about one hour. That he was detained in a cell for two nights until he requested Sgt. Matata to inform his family members who visited him. That on that day, he was

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transferred to Old Kampala Police Station where he was released on Police Bond. That he got medical treatment but still experiences back pain that has limited his ability to work and walk. He argued that the actions by the said police officer amounted to the violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment, thus holds the Respondent vicariously liable.

The Respondent through a representative, Ms. Adong Imelda denied the Complainant's allegations.

## **ISSUES**

- Whether the Complainant's right to freedom from torture or cruel, $(i)$ inhuman or degrading treatment or punishment was violated by the Respondent's agents/servants - Whether the Respondent (Attorney General) is liable for the violations $(ii)$ against the Complainant's right. - Whether the Complainant is entitled to any remedies. (iii)

Before I resolve the above issues, I note from the record that this matter was partly heard by former member of the Commission, Commissioner Agaba Maguru.

I also noted that the Respondent did not call any defense witnesses and never filed submissions in defense of this matter. Nonetheless, the Complainant retained the burden to prove his case against the Respondent to the satisfaction of the Tribunal on balance of probabilities and in accordance with the provisions of the Evidence Act.

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Section 101 (1) of the Evidence Act Cap 6 provides that;

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that the facts exist"

And under S.102 of the Evidence Act (supra);

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.'

I now turn to the issues.

# Whether the Complainant's right to freedom from torture or cruel, $(i)$ inhuman or degrading treatment or punishment was violated by the Respondent's agents/servants

The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 (UN CAT) defines "torture" under Article 1 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"

Article 24 of the Constitution of the Republic of Uganda prohibits the violation of a person's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. It was emphasized in ATTORNEY GENERAL VS SALVATORI ABUKI Constitutional Appeal No.1/1998 that the freedoms

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enshrined under Article 44 of the Constitution are non derogable and include freedom from torture or cruel, inhuman or degrading treatment or punishment.

Torture is further outlawed by several international human rights instruments to which Uganda is signatory. (See Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR).

The Macmillan School of Dictionary at page 779 defines "torture "as: "extreme physical pain that someone is forced to suffer as a punishment or as a way of making them give information". It further defines "to torture" as: "to hurt someone deliberately in a very cruel way as a punishment or in order to make them give information"

The actions committed against the Complainant would constitute "torture" if the same were proved as such.

**Mbyemire Wilson** testified before this tribunal that on 8th April, 2006 while on his way to bank money amounting to $4,200,000/$ =, he was ambushed by thugs who put him in a vehicle. That he became unconscious and that when he regained his senses, he admitted at Orthodox Church Hospital in Namungoona. That his boss Ruranganwa was contacted and that he paid the hospital bill and took him to his (Byemire's) home. That on 9th April, 2006, two CID officers including Sgt. Matata arrested him and took him to Taxi Park Police Post. That his boss Ruranganwa came and ordered Sgt. Matata to beat him until he confessed where the money was. That Sgt. Matata beat him all over his body and ribs using a bicycle lock for about one hour. That he was detained in a cell for two nights until he requested Sgt. Matata to inform his family members who visited him. That on that day, he was transferred to Old Kampala Police Station where he was released on Police Bond. That he got medical treatment but his back still hurts and hinders him from doing work and walking compared to how he was prior to the beatings.

The Tribunal notes that the Complainant was cross examined twice; on 13th October, 2011 by Ms. Irene Bayiga and on 25th March, 2015 by Ms. Adong Imelda.

During the 1st cross examination, Mbyemire stated that he had worked for Ruranganwa as a storekeeper for 5 years. That he was given money amounting to 4,200,000/= to go deposit it in the bank, but on his way, it was stolen from him on gunpoint. That he did not report to his employer, but just went home. That he was arrested the following day by Sgt. Matata on charges of theft. That he was detained at New Taxi Park for 3 days and transferred to Old Kampala Police Station where he was released on police bond. He also stated that Ruranganwa ordered the police to beat him.

Upon the $2^{nd}$ cross examination by Ms. Adong Imelda, Mbyemire stated that he was ambushed by thugs who put him in a vehicle and beat him. That he got treatment for the chemicals used on him by thugs from Orthodox Church Hospital. He further states that he was beaten from the Old Taxi Park Police Post. That his boss sent someone to pay the medical bills at Orthodox Hospital. That his boss got him from his home (Byemire's) and took him to Old Taxi Park Police Post and ordered that he should be beaten. That he was detained for 2 days and transferred to Old Kampala Police Station where he was released on police bond. That he kept reporting at Old Kampala Police Station, but after he reported at New Taxi Park Police Post. That the case of theft against him ended at police because they discovered that he had not stolen the money.

Upon re-examination by Counsel for the Commission, the Complainant stated that the thugs did not beat him at all and that while at Orthodox Church Hospital, he was only treated for the chloroform sprayed on him.

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An original copy of the Police bond from Old Kampala Police Station dated 11th April, 2006 was admitted for identification purposes and marked ID1. $\mathbf{I}^{\dagger}$ indicates that the Complainant Mbyemire Wilson, being charged with theft SD ref $26/08/04/06$ was released on non-cash bond by Old Kampala Police station on $11/04/2006$ .

**Laban Kwatampola (CW 1)** testified that on a date that he could not recall but in April 2006, he received a phone call from Mbyemire Wilson telling him that he was at Taxi Park Police Post. That he informed him that he had been robbed while going to the bank and that his boss caused his arrest. That he (Laban) immediately called the Complainant's boss Apollo Ruranganwa who informed him that he was at his shop. That he went to the said shop and found Apollo who informed him that he took the Complainant to police, but he was badly beaten. That he went to the police and found the Complainant in bad shape as he had bruises all over his back and his shirt was socked with blood. That he went to Old Kampala Police Station that supervises Taxi Park Police Post and requested for the release of the Complainant. That the Complainant was transferred to Old Kampala Police Station and released on police bond. That Mbyemire was after taken to the hospital by his brother.

Upon cross examination, he stated that he is a brother in-law to the Complainant. That the brother to the Complainant is the one who took him to hospital.

Tasaga Charles (CW3) testified that he is a civil servant at the Health Directorate in Jinja and also a Director and a clinical officer at City Side Clinic found at Busabala Road in Najanankumbi. That in April 2006, the Complainant Mbyemire Wilson went to their clinic while limping with complaints of chest and back pains. That upon examination, he had scars all over his body but more were on his back. That he also had bruises and not deep cut wounds, thus no deformity on his body. That no x-ray was done and that other body systems were in normal conditions with no internal bleeding. That the Complainant could have been beaten with a metallic object. That they treated the Complainant's wounds and put him on injections. He further states that he was given a medical form, but he went back after one month and requested for a medical report which was also availed to him. That in his opinion, a victim of torture can get physiological problems which can affect his mental capacity and depression. He classified the injuries on the Complainant as bodily harm.

The medical notes dated 20th April, 2006 and medical report dated 25th August, 2009 were admitted as exhibits C1 and C 11 respectively.

The Tribunal notes that this witness was not cross examined on the day he testified because the Respondent was not represented and he could not be cross examined at subsequent hearings because he left Uganda and was reported to be living in Libya.

Dr. David Kyazze (CW4), testified that he is a medical doctor stationed at Children's Clinic Kampala but had also worked at African Center for Treatment of Torture Victims (ACTV) between 2004 and 2012. That he holds MBCHB (MUK) 1980 and a Diploma in Tropical Medicine & Hygiene from University of Witwatersrand 1985. That while working at ACTV, he examined the Complainant on 25th April 2006, presenting a complaint of having been tortured after being suspected of theft. That the Complainant complained of back, chest and neck pains. That upon examination, he noted that he had many lash marks on his back and fore arm which were compatible to the allegations of beatings using a twisted object. That he observed that the Complainant had pain and psychologically had anger. That the physical findings were compatible with the allegations of torture, and he classified the injuries as grievous harm.

The certified copy of the medical examination report was duly admitted as Exhibit C 3.

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The Tribunal notes that Dr. Kyazze David was also not cross examined due to the failure by the Respondent to appear before Tribunal on two occasions. The Tribunal also notes that the matter was adjourned twice to allow the Respondent to lead evidence in defence and to file submissions, but all were in vain.

I therefore find that the Respondent was accorded a fair hearing in this matter and I will therefore entirely rely on the evidence adduced by the Complainant to establish on the balance of probabilities, whether his right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.

As already noted, the Complainant was cross examined twice and in the interest of justice, I have decided to rely on all the evidence adduced since I found critical concerns in his testimony.

I find that the Complainant's testimony has several inconsistencies and ambiguities. For instance; during examination in chief, the Complainant stated that he was ambushed by thugs who put him in a vehicle, sprayed him with chloroform and that upon gaining his senses, he found himself admitted at Orthodox Church Hospital in Namungoona. However, during the first cross examination, he contradicted himself when he stated that the thugs put him on gunpoint, took the money he was taking to the bank and thereafter, he just went to his home before reporting to his boss.

Secondly, the Complainant stated during examination in chief that while at Orthodox Church Hospital, he contacted his boss who came and paid the bill and thereafter took him to his home, but during the 2nd cross examination, he stated that his boss sent someone to pay the bill.

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Thirdly, during examination in chief, the Complainant stated that he was arrested from his home by two CID officers and Sgt. Matata who took him to Taxi Park Police Post, and that his boss Apollo Ruranganwa arrived after 10 minutes and ordered for his beating. However, during the $2nd$ cross examination, he stated that it was Apollo Ruranganwa who went to his home and took him to the said police post and ordered for his beating.

Fourthly, the Complainant testified that he was detained for two nights at Taxi Park Police Post, but during the 1st cross examination, he stated that he was detained there for 3 days. I also noted from his testimony, that the name of the place of the alleged detained kept changing from Taxi Park police post to New Taxi Park police post and Old Taxi Park police post. On the other hand however, the Police Bond form admitted as ID 1, indicates that Mbyemire Wilson was released on none-cash bond by Old Kampala Police Station on 11/04/2006 and in the follow up notes of 24/04/2006 he was referred to New Park Police Post $I/C$ CID D/SGT Matata.

Furthermore, the Complainant stated during examination in chief that he was beaten by Sgt. Matata, and during the 2nd cross examination, he states that the thugs put him in a vehicle and beat him. On the other hand, during reexamination, he changed his testimony and stated that the thugs only sprayed chloroform which made him unconscious, they never beat him, and that at Orthodox Church hospital, he was only treated for the chloroform.

From the definition of torture already cited, the right to freedom from torture can only be said to have been violated if the Complainant proves on the balance of probabilities that there he experienced the infliction of severe mental or physical pain or suffering, by or with the consent or acquiescence of the state authorities, for the specific purpose such as gaining information, punishment or intimidation.

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The Tribunal finds that the Complainant indeed suffered severe pain resulting from physical beatings. This testimony as to the injuries sustained by the Complainant is corroborated by the testimony of CW 3 and CW4 who examined him and compiled the medical reports exhibited as C 1, C2 and C3. Dr. David Kyazze (CW4) established that the Complainant had many lash marks on his back and fore arm which were compatible to the allegations of beatings using a twisted object. Tasaga Charles CW3 stated that upon examination, the Complainant had scars all over his body but more were on his back. That he also had bruises and not deep cut wounds which he classified as bodily harm.

However, what remains not clear is who inflicted the said severe pain and for what purpose. There is no single eye witness who saw any thugs or police officer beating him. The Complainant did not produce any evidence to support his testimony that he was not beaten by the thugs but by Sgt Matata and that Orthodox Hospital (if indeed was) only treated him to recover from the chloroform. There is no single eye witness who testified to have seen the Complainant immediately before his arrest, as to prove that he sustained the injuries after his arrest. In fact I am in doubt of the sequence of events as presented by the testimonies of the Complainant and CW2 that the Complainant was arrested and detained a Taxi Park Police post and then released by Old Kampala Police Station. This is because, there is no evidence of detention at the said police post from the $9/04/206$ and ID 1 only indicates his referral to New Park Police Post on 24/04/2006. In the circumstances, the Complainant's testimony remains mere allegations.

In absence of clear evidence to corroborate the Complainant's evidence, and given the several inconsistencies in his testimony, I find it hard to rely on evidence of the Complainant as a single witness. This is in line with the case of Christopher Bagonza Vs Uganda, Criminal Appeal No. 25 of 1997, in which it was held that court must in every such case examine the testimony of a single witness with greatest care and where possible look for corroborating or other supportive evidence.

I therefore find that the evidence before me only proves one of the elements of torture; that the Complainant sustained severe physical pain and suffering that was intentionally inflicted upon him. There is no evidence to support the allegations that the severe pain and suffering was inflicted by Sgt. Matata (a state servant) for the purpose of obtaining information or a confession (to the crime of theft). Although it is can be deduced from ID1 that the Complainant was in contact with the state agents; Old Kampala Police Station on $11/04/2006$ and New Park Police Post on 24/04/2006; he has not produced evidence to the satisfaction of the tribunal that the state agents beat him up and inflicted severe pain to obtain a confession as to the theft. The injuries in question could as well have been caused by the thugs, who allegedly attacked him on his way to the bank.

Therefore, I find that the Complainant did not on the balance of probabilities prove that the Respondent's agents violated his right to freedom from torture or cruel, inhuman or degrading treatment or punishment and the claim by the Complainant of torture in the instant complaint is therefore disallowed

## (ii) Whether the Respondent (Attorney General) is liable for the violations against the Complainant's rights

Having resolved in issue (i) above that there was no sufficient evidence to prove on balance of probabilities that the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents/servants;

I find that there is insufficient evidence to point to the liability of the Respondent in this matter. I therefore resolve this issue in the negative.

## (iii) Whether the Complainant is entitled to any remedies

Article $53(2)$ of the Constitution provides that:

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

- $(a)$ - (b) payment of compensation; or

Having resolved issues 1 and 2 in the negative, the Tribunal is not satisfied with the evidence produced by the Complainant and thus finds that he is not entitled to any compensation as prayed.

## **ORDER**

- 1. The complaint is disallowed and is hereby dismissed. - 2. 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 of this decision.

$2srd$ $\frac{1}{2}$ $...2016$ DATED AT KAMPALA on this ....

HON. JOSEPH A. A. ETIMA

PRESÍDING COMMISSIONER.