Mugabe Hillary v Attorney General (Complaint UHRC 83 of 2009) [2018] UGHRC 14 (16 May 2018)


# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA**

#### COMPLAINT NO: UHRC/83/2009

MUGABE HILLARY ::::::::::::::::::::::::::::::::::::

**AND**

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

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

### **DECISION**

The Complainant lodged this complaint with the Commission on 26<sup>th</sup> June 2009 alleging thaton 19<sup>th</sup> June 2009 at about 11:00am, he informed ADC's attached to the office of his boss Major GeneralOwoyesigire J. B(the then Commander Air force) that he needed to withdraw some money from post bank for his family's up keep since he had been on duty and away from home for 2 weeks. That while on his way back, he saw his boss driving himself and upon return, he found a message for him to report to the quarter guard immediately. That he informed the officers at that office that he would report there in the morning as he needed to get home. He further alleges that at about 11:30pm in the night of the same day (19<sup>th</sup> June 2009), he heard a knock on his door, and was being called to come out. That the people calling him kicked the door and he noticed they were soldiers; they tied his hands "kandoya style", beat him with batons on the knees, ankles, shoulders and back that he became unconscious and only regained his consciousness at Katabi Military Hospital.

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 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 or 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 agents

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

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.

Mugabe Hillary testified before this tribunal that he couldnot recall the date of the incident but it was around mid-night at Entebbe Katabi Air-force Barracks. Soldiers went to his home and forcefully opened his houseand started beating him with batons on his ankles, elbows and back as a result he lost his consciousness. He further stated that he knew they were soldiers because he knew them as escorts of Major General Oyesigire, the Commanding Officer UPDF Air Force and that at that time, they were dressed in the Air force uniform which had their ranks and he was their driver. He identified them as Lt Denis Nkwasibwe, SgtBesima, SgtObwana, CplNinga Nelson and Lt Mwesigye John. That at that time they were holding guns and batons; and after the beating, he lost his consciousness and only regained it at Katabi Military Hospital. He

was referred and taken to Bombo Military Hospital but still referred to Mulago Hospital where he was admitted for about two days and discharged. That even after discharge he was not well and he was advised by a friend to go to the African Centre for Torture Victims (ACTV) in Bukoto where hereceived treatment.

The Complainant stated that he never got to know the reason as to why the soldiers came to his house in the first place. When he returned to Entebbe Military Barrackshe was accused of being a deserter by Lt John Mwesigye and faulted for reporting the incidence to Uganda Human Rights Commission. That he was arrested and told he would be dismissed from the Army. He was then taken to Quarter Guard where he was detained for 6 (six) months without being taken to court. That after the six months he was taken to Katabi Disciplinary Court where he was charged with desertion and sentenced to two years imprisonment which he served. After serving the said sentence he went back to Entebbe Air force Unit and reported that he had completed the service. He was informed that he would be given a discharge form in 2012 but by the time of this testimony on 24<sup>th</sup> November 2016, he had not received it.

The Complainant's witness, Dr. Lubega Ronald testified that he held an MBchBfrom Mbarara University of Science and Technology, 2011. That he had worked with African Centre for Treatment and Rehabilitation of Torture Victims(ACTV) four (4) years. His roles were to screen, examine and treat torture victims. He stated that Mugabe Hillary presented to ACTV in 2009 with complaints of neck pains, lower back pain and joint pains. That when he was examined, the findings were that he had tenderness over both knees and the left shoulder, was in a fair general condition but had post traumatic arthrosis. He defined Arthrosis as a disease of the joint which is characterized by a lot of pain and difficulty in movements. He added that the Complainant was treated by Dr. Muwa and the medical report had been authored by Dr. Muwawhom he had worked with for three years. He confirmed that the document bore Dr. Muwa's signature and was dated 28<sup>th</sup> January, 2010.

The medical report from ACTV dated 28<sup>th</sup> January 2010 was admitted in evidence as the Complainant's exhibit and marked as CX1.

Dr. Lubega further interpreted medical documents in respect to Mugabe Hillary from MulagoNational Referral Hospital and stated that the documents were treatment notes that indicated that the Complainant was admitted in Mulago on 22nd June 2009with severe back ache secondary to assault. That he was examined and found to have soft tissue injury and an X-ray was done. That the Complainant was admitted on 3<sup>rd</sup> floor Emergency Surgery side where he was treated on antibiotics and pain killers; no abnormalities were detected in the bones. Mugabe was later discharged on 23<sup>rd</sup>June, 2009 with a diagnosis of a blunt muscular skeleton injury which meant that the injury was caused by a blunt object. He was discharged on pain killers. He concluded by stating that the Complainant had a temporary disability at 10%.

The treatment notes from Mulago Hospital were also admitted in evidence as the complainant's exhibit and marked as CX2.

During cross examination, Dr. Lubega Ronald stated that the Complainant was treated by ACTV in 2009. That ACTV treats and rehabilitates torture victims and is restricted only to torture victims. He confirmed that the Complainant was examined by Dr. Muwawhom he had worked with for three years. He also stated that when the patient is recieved, the doctor takes down his or her history to have a beginning point on the treatment. He further stated that with regard to the Complainant he was diagnosed with post traumatic arthrosis with temporary disability of 10% which meant that the Complainant could or could not get healed. He added that for a person who has a temporary disability of 10% may fail to work. In this case it was the hip and knee joints affected and with such a problem, one can fail to work.

The Complainant's second witness Namugabo Judith stated that in 2009 while at the Air force Barracks Entebbe she heard people hit the door of herneighbour Hillary Mugabe. That when sheheard the door being opened, she came out and saw men who were dressed in Army uniforms beating Hilary and that the Commander ordered the soldiers to detain him. That she saw his hands and legs tied with ropes. He was lifted and put on a UPDF pick up. She stated that she lived in the barracks because she was married to a soldier. She added that she knew they were UPDF soldiers because she knew the Commander alias 'Doctor' and others who were dressed in combat. She added that when Mugabe Hillary was being beaten he kept crying and asking for help that 'Doctor' was killing him. That she heard 'Doctor' ordering for the detention of Mugabe Hilary at Katabi Quarter Guard.

The Respondent's Counsel filed submissions in defence wherein Counsel stated that in an effort to prove his allegations against the Respondent, the Complainant called Dr. LubegaRonald from ACTV who testified as an expert witness and that his testimony was based on the medical report dated 28th January 2010 and admission forms from Mulago Hospital. That it was Dr. Lubega's evidence that the history of the Complainant was not on record and that in a case of that nature, the history of the Complainant is critical in determining the issue at hand. Counsel further submitted that in its absence it leaves the evidence lacking because the injury could have been as a result of an accident suffered some years ago or a heavy fall and not the alleged beatings by the Respondent's agents. That in the absence of the Complainant's medical history it is impossible to prove that the injuries allegedly suffered by the Complainant were as a result of the alleged acts of the Respondent's agents.

According to the record of proceeding it is well stated during the examination in chief, cross examination and re-examination of Dr. Lubega Ronald that before a patient is treated the doctor first takes down the history of the patient. In re-examination Dr. Ronald Lubega emphasized that the findings in the report were based on the history of the Complainant. I therefore find the Respondent's submission on based on facts.

I will therefore evaluate the evidence in light of the elements of torture highlighted above.

The incident arose at Katabi Air-force BarracksEntebbe, the Complainant's residence. Soldiers forcefully opened his house and beat him with batons all over his body especially on his ankles and elbows, and as a result he lost consciousness. He was taken to Katabi hospital, transferred to Bombo Hospital who referred him to Mulago National Referral Hospital. He was also treated at ACTV.

The Complainant produced medical documents, that is, the treatment notes from Mulago hospital and medical report from ACTV to support his allegation and according to the expert witness, the Complainant had a temporary disability at 10%.

I therefore find that the Complainant sustained severephysical and mental pain and suffering as a result of the beatings meted on him. The first ingredient of torture is therefore proved.

Secondly, the evidence adduced indicates that the Complainant was beaten by soldiers fromKatabiAirforce Barracks whom he identified as escorts of Major General

$\mathbf{6}$

Oyesigireand his colleagues. The Complainant's testimony was confirmed by that of his witness Namugabo Judith who stated that she was the Complainant's neighbor and witnessed the incident. She also identified the perpetrators as soldiers in uniform, commanded by 'Doctor.'The second ingredient of torture has also been proved; Complainant was beaten by and with the consent or acquiesce of state authority – the UPDF Air Force.

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 beating the Complainant was not indicated in the evidence though the circumstances of the case point to the fact that the Complainant was beaten while the soldiers effected his arrest. The Complainant himself clearly stated that he never got to know the reason as to why the soldiers went to his house. I therefore find that the Complainant was subjected to cruel, inhuman and degrading treatment.

I therefore find and hold that on a balance of probabilities, the Complainant's right to freedom from cruel, inhuman and degrading treatment was violated by Soldiers attached to Katabi Air-force Barracks 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 a remedy of an award of general damages since he has proved that he was unjustifiably beaten by the Respondent's agents. The Complainant suffered post traumatic arthrosis as a consequence he sustained atemporary disability at 10% according to the expert witness.

Taking into consideration the nature of injury and the circumstances of the case, 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 Mugabe Hillary a 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.

... DAY OF ................................... DATED AT KAMPALA ON THIS. ...2018

**IOSEPH A. A. ETIMA**