Medad Ntulanabo v Attorney General (Complaint UHRC 60 of 2012) [2018] UGHRC 13 (27 March 2018)

Full Case Text

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# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA COMPLAINT NO: UHRC/60/2012**

MEDAD NTULANABO ::::::::::::::::::::::::::::::::::::

-AND-

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

### (BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA)

#### DECISION

The Complainant Medard Ntulanabo, aged 58 years a resident of Nansana West 2 village, Nansana Parish, Nabweru Sub County in Wakiso District alleged that on 29th April 2009 he had an argument with one Kahumpuli who was trespassing on his land by pouring sand on it. That he hit one of the side mirrors of Kahumpuli's vehicle. That thereafter the said Kahumpuli went to Nansana Police Station and returned with three Policemen who ordered him to go with them to the Police Station. That he told the said Police officers that he was willing to pay for the broken side mirror but they instead hit him on the left knee, ribs, hip joint and waist several times using a gun butt. That while at the said Police station one of the Police officers stepped/stamped on his feet for about ten minutes after which he was pushed to the Police cells where he spent a night.

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The Respondent represented by Counsel Batanda Gerald denied the allegations.

At the commencement of the Tribunal hearing, the following issues were framed and agreed upon by the both parties:-

- I. Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated? - II. Whether the Respondent is liable? - III. Whether there is any remedy available to the Complainant?

This matter came up for 1st time hearing on the 6th August 2014 before former Commissioner Violet Akurut Adome. At the hearing examination in chief and cross examination was carried out on the Complainant and CW I Margaret **Ntulanabo CW I.** On 2nd September 2014 when the matter came up for further hearing examination in chief and cross examination was carried out on CW II Ponsiano Kanyarutokye.

On 10th August 2016 the matter came up before me for further hearing, the Respondent was not represented despite receipt of summons and the matter proceeded ex-parte against the Respondent under Rule 18 (1) of the UHRC (Procedure) Rules 1998. Examination in chief was carried out on CW III Dr Lubega Ronald a medical doctor attached to African Centre for Treatment and Rehabilitation of Torture Victims (ACTV). The matter was adjourned for cross examination of CW III and defence case. On 1st March 2017 when the matter came up for cross examination and defence case the Respondent was absent despite receipt of summons.

I will now resolve the Issues as they were raised.

As to the first issue, the Complainant's evidence is that at about 4:00 pm on 29th April 2009 he had an argument with one Kahumpuli who had trespassed on his

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land by pouring sand on it. When he tried stopping Kahumpuli, he (Kahumpuli) instead poured more sand on his land. In reaction he hit the side mirror of Kahumpuli's car. Kahumpuli later went to Nanasa Police Station and returned with three Policemen. The policemen requested him to go to the Police Station with them. As he was been taken to Nansana Police Station he was beaten with gun butts on the face, ribs, chest on allegations of disturbing them. As a result of the beatings he was weak, his knee joints were badly hit and he was in pain. He later sought treatment from ACTV. From 2009 – 2012 he was seeking treatment from ACTV but he was later referred to Kadic Hospital for further management. He can no longer work normally due to the torture. He stated that he was in serious pains, had back problems and was also disabled.

Upon cross examination he acknowledged that on 29th April 2009 he broke the side mirror of the truck which was pouring sand on his land. He resisted arrest and upon his resisting arrest some force was used by the Police on him.

Margaret Ntulanabo CW I testified that on a date and month she could not recall but in 2009 she received a phone call from a Policeman attached to Nansana Police Station that the Complainant he had been detained at the Police Station. At around 5:00 pm she went to Nanasana Police Station and found the Complainant in detention. The Complainant showed her wounds on the knees and swollen feet with bruises and also informed her that he had been beaten by a Police officer after hitting the driving mirror of a car belonging to one Kahumpuli who was pouring sand on their land. That she later dressed his wounds and he went to a hospital which she does not know.

Upon cross examination she stated that the Complainant was arrested in relation to vandalizing the driving mirror of the truck which was pouring sand on his land.

Kanyarutokye Ponsiano CW II testified that on the 29th April 2009 while he was with the Complainant constructing a kiosk one Akampurira wanted to pour sand

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at the site where they were constructing the kiosk but the Complainant refused. The Complainant later picked a hoe and hit the side mirror of the tipper lorry. Akampurira left the site and later came back in a small Mark II car with 3 Policemen. Two of the Policemen were dressed in Police Khaki uniform while the other was dressed in civilian wear. The Complainant was hit with gun butts all over the body until he became weak and had to succumb to their demand of being taken in the car. He later informed CW I what had happened. He later saw the Complainant in Kanungu and observed that he Complainant had scars on the hands, knees. The Complainant informed him that he had gotten the scars from the beatings meted to him by the Police.

Upon arrest, he stated that he was present when the Complainant was arrested.

Dr Lubega Ronald CW III testified that he is a medical doctor who has worked with ACTV for three years. He testified that at one time he treated the Complainant and he also knows Dr Muwa Paul who treated the Complainant at ACTV. He interpreted Exhibit 1. Upon examination at ACTV the Complainant had soft tissue injury which did not extent to the bones. The Complainant had physical and psychological signs which were consistent with allegations of torture. Permanent disability was put at 15%.

The prohibition on torture and other forms of ill-treatment is enshrined in Article 24 of the Constitution of the Republic of Uganda 1995, which simply states: "No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment". However Article 24 must be read together with Article 44 (a) which states that no derogation from the provisions of Article 24 can be The Europe Court of Human Rights in Aydin v. Turkey, App. No. made. 23178/94 has emphasized that the prohibition against torture "enshrines one of the most fundamental values of democratic societies" that must be respected "even in the most difficult circumstances".

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The Complainant has a legal duty to prove his claim against the Respondent on a balance of probabilities notwithstanding that the Respondent did not call witnesses or file a defence [See 100-102 of Evidence Act Cap 6; Rule 23 (1) of the UHRC (Procedure) Rules 1998; John Patrick Besingiza & Another vs Attorney General UHRC/MBR/009/2007; Hakizimana Francis and Attorney General UHRC/CTR/10/2009].

Whoever wishes to deny or dispute the allegation made against him or her must of necessity challenge the relevant allegation by way of adducing evidence through his or her witnesses' testimonies and/or cross examination of the witnesses on the opposite side (see Zirimu Johnson and Attorney General UHRC/CTR/344/2004). The matter was adjourned for defence on 10th August 2016. When the matter came up for defence case on 1st March 2017 by the Respondent was not represented despite receipt of summons.

In making a determination whether the acts complained by the Complainant are consistent with violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment, I will take into consideration the nature of the act or acts involved; the severity of the physical and/or mental harm suffered as a result of the acts and the purpose of the actor. Torture is an act or omission intentionally inflicted on a person for a purpose, which causes severe and cruel physical or mental suffering. The Complainant's testimony is that when he was taken to Nansana Police Station he was beaten with gun butts on the face, ribs, chest by the three Policemen following a dispute over land with Kahumpuli. CW I went to visit the Complainant in detention and observed that he had wounds on the knees and also had swollen feet with bruises and she later dressed his wounds. CW II testified that during arrest, he witnessed the policemen beating the Complainant with a gun butt all over his body in order to force him to board the vehicle. Exhibit I further corroborates the nature of injuries the Complainant sustained. The Policemen intentionally inflicted physical pain as which led him to

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suffer severe physical pain. This is no justification for the Respondent's agent's actions. The evidence as adduced by the Complainant and his witnesses has remained challenged by the Respondent. I accept wholly the evidence adduced by the Complainant and his witnesses.

Considering the evidence on record, the Complainant was subjected to acts of torture hence right to freedom from torture as protected under Article 24 of the Constitution of the Republic of Uganda 1995 was violated by the Respondent's agent.

#### I turn to Issue II.

The law with regard to vicarious liability is that an employer is generally liable for the act of the employer or agent- committed within the course of the employer's business. In order for there to be vicarious liability the servant must first be found liable. Then where the answer is positive the principal will be held to shoulder the servant's liability where appropriate [See Kasekya Kasaija Sylvan v Attorney General HCCS 1147 of 1998; Bagume John and Attorney General UHRC/JJA/10/2007; Okia John & Emuge Joseph and Attorney General UHRC/SRT/208/2006].

As earlier resolved in Issue 1, the Complainant was subjected to acts of physical torture while in detention at Nansana Police Station upon being arrested. There is sufficient evidence on record to prove that the Police officers who subject the Complainant to acts of physical torture were acting within the course of their employment since they were trying to disperse the crowd which had gathered. Therefore the Respondent is vicariously liable for their actions.

#### I now turn to Issue III;

Under Article 8 of the Universal Declaration of Human Rights 1948 everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law. Under Article 53 (2) of the Constitution, the Uganda Human Rights Commission may, if satisfied that there has been an infringement of a human right or freedom, order for payment of compensation or give any other legal remedy or redress.

Having answered Issues I & II in the affirmative, the Complainant is entitled to a remedy the Tribunal deems fit and this may be payment of compensation or any other legal redress or remedy. In considering the quantum of damages I will take into account the nature of injuries sustained by the Complainant and the impact on his life if any, the fact that this is an absolute right and the innocence of the Complainant (See Isabiye Kiwule vs Attorney General UHRC/J/35/2003, **Enyimu Daniel and Attorney General UHRC/SRT/212/2007).**

The Complainant testified that as a result of the beatings inflicted upon him he can no longer work normally. He stated that he was in serious pains, had back problems and was also disabled. As per Exhibit I, upon examination the Complainant had soft tissue injury and permanent disability was put at 15%.

I hereby order that the Respondent pay the Complainant a sum of Ug Shs 6, 000, 000/= (Uganda Shillings six million only) as general compensation for the violation of his right to freedom from torture.

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### **ORDERS**

Accordingly, the Tribunal orders as follows:

- (1) The Complaint is allowed. - (2) The Respondent is ordered to pay the Complainant a sum of Ug.shs. 6,000,000= (Uganda Shillings six million only) as general damages for the violation of his right to freedom from torture. - (3) The sum shall attract interest at 10% from the date of this decision till payment in full. - (4) Either party shall bear its own costs.

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

$\mathcal{A}_{\ell}$ Dated at KAMPALA this $\overbrace{\qquad \qquad }$ day of $\overbrace{\qquad \qquad }$ 2018.

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## **MEDDIE B. MULUMBA.** PRESIDING COMMISSIONER