Mwesigye Ndirifite v Attorney General (Complaint No: UHRC/FTP/053/2012) [2017] UGHRC 22 (14 December 2017)


# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT FORT PORTAL COMPLAINT NO: UHRC/FTP/053/2012**

## **MWESIGYE JACKSON NDARIFITE:::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**AND**

**ATTORNEY GENERAL I:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE PRESIDING COMMISSIONER**

#### **HON. DR. KATEBALIRWE AMOOTI WA IRUMBA**

#### **DECISION**

\*• \

> -. The Complainant Mwesigye Jackson (C) alleges that on 28th July 2012, at around 1.00 p.m., he was arrested by about <sup>8</sup> police officers acting on the orders of the O/C CID, one Muhindo and was detained at Kamwenge Police Station. That while being taken to the Police Station, he was slapped by one of the police officers on the cheek and that he was also beaten by the other arresting officers using batons around the thighs, legs and head, amidst kicks and boxing on the back. C also alleges that he was strangled by one of the police officers on the neck using his

> > 1

shirt. That after the beatings, he was detained for about 20 minutes at the Police Station and was released thereafter.

Counsel for the Respondent (RC), Kawalya Ronald denied the allegations and opted to defend the matter.

The issues to be resolved are:

- 1. Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by States agents contrary to Article 24 ofthe Constitution ofthe Republic of Uganda. - 2. Whether R is liable for the violation. - 3. Whether C is entitled to any remedy.

Reolution ofthe above issues shall be done in line with the requirement stated under **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 over the existence offacts which he or she asserts must prove that thosefacts exist. "*

As well as **Section 102 of the Evidence Act** (Supra), which also states that;

*"The burden ofproofin <sup>a</sup> suit or proceedings lies on the person who wouldfail ifno evidence at all were given on either side. "*

#### **Resolution of issues:**

**Issue 1: Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.**

C testified that one day in July 2013 at around 10.00 a.m. ,he was arrested by police officers. That about three months prior to this incident, he had stood surety for Pheobe Semahoro and Rututwa in court. That the court wanted the said people to appear in court later on but they did not do so. That a warrant of arrest was then issued for them by the Chief Magistrate of Fort Portal, and C assisted the police by advising them on where to find the two people because he knew where they were.

That he went to Kamwenge Police Station to meet the DPC and the O/C CID to advise them accordingly because he did not want to be arrested. That the District Police Commander and Officer in charge Criminal Investigation Department then instructed Mahyoro Police Post to go and get the said people. That DPC Kiconco Tibbs promised C that ifthey got them, C would be set free.

C stated further that after this, he went to Mahyoro Police Post, cooperated with the officers he found there and they arrested the two people in the evening and detained them at Mahyoro Police Post. That the following day, the two people were taken to Kamwenge Police Station, and C was informed that the two people had been put in the cell, and that they would be produced in court in Fort Portal the following day.

That however, while at Kamwenge Police Station, the O/C CID ordered his Deputy and his Police officers to detain C. That C himself tried to call the DPC but the latter refused to pick his calls twice and when he called him again for the third time, he switched offthe phone.

That the Deputy O/C CID and his officers pushed him and he told them to let him call his brother to come and assist him. He then talked to the Director of Operations, Grace Turyagumanawe who assisted him but as he was still speaking, the police officers took away his phone.

That he was taken to the cell while being beaten and one of the police men tied him with a shirt around the neck, while another one slapped him and he fell down and they started dragging him on the ground to the cell. That when he told them to let him move by himself to the cell, they refused.

That the O/C CID was seated somewhere watching and the Deputy O/C CID was among the officers who were beating him. They beat and dragged him for roughly 20 minutes and the police officers simply lifted him and threw him into the cell and as a result, the door of the cell hit him on the shoulder.

That he was released after about 20 to 30 minutes by the DPC and the O/C CID and he walked out of the cell by himself. That he was in the cell together with Charles Rwagwera, Semawule and Rukuto, among others. That he knew the Deputy O/C CID, Kibuleka physically but at that time he did not know his names. He was given a medical form from police.

C testified further that following his release from Police, he went to Fort Portal Regional Referral Hospital where he met Dr. Kiddu who observed that his shoulder bone had been dis-located, and it could not go back to its original position. That Dr. Kiddu then advised him to go to Mulago Hospital. That the Medical Superintend of Fort Portal Regional Referral Hospital filled C's police medical form. That at Mulago Hospital, he failed to get the Specialist for bones after trying four times so, he opted to get the services oftraditional doctors.

**RC, Kawalya Ronald cross examined C** and C stated that he had a workshop for wood work at the time the events occurred, and that he used to earn about 30,000/= per day but was unemployed at the time he gave his testimony, adding that he survives by being hired to dig. C added that he had stood surety for Semahoro and Rukutu who had been charged with murder and when they skipped bail he made sure that he presented them to police. That he was informed by Court through police officers of Kamwenge Police Station that the two people had jumped bail. That O/C CID by then was Owere, the deputy O/C CID was Kibuuka and that the DPC Kiconco ordered for his detention in the presence of the O/C CID and Deputy O/C CID. That he was beaten for about 10 minutes and was not given any reason as to why he was pushed into the cell where he spent about 40 minutes.

He stated further that a one Gafabusa saw him being beaten but the other suspects were in the cell. That he was released with no charges brought against him and after his release, he reported the incident to Fort Portal Police Station and a file was opened for him. After about <sup>1</sup> to 2 days later, he went to Buhinga Hospital where he was treated by Dr. Kiddu. That he had earlier on gone to a pharmacy for medicine but this had not helped. That Dr. Kiddu referred him to Mulago Hospital with a document which he gave to the Commission. He pointed out that he had no admission form to Buhinga Hospital; and that he had also been x-rayed but did not remember where he put the results. C emphasized that he was still unwell because he had sustained permanent injury, adding that whenever he gets problems with his hand, he goes to Kampala to different clinics, and that had the documents at home to this effect.

**CC re-examined C** who confirmed being beaten at the police station for about 20 to 30 minutes, and also detained for 40 minutes. That apart from Buhinga and Mulago Hospitals, he had also been treated at Mpara Health Centre IV before resorting to traditional doctors for management of the fracture.

**CW1, Gafabusa Deogratious** testified that he was a Special Police Constable who had previously been attached to Kamwenge Police Station for 3 years since 2009. That he knew C because they stay in the same village, adding that in 2013, while he was working at the said Police Station, he saw C coming to the station with a suspect called Steven Samahoro and in the company of another police officer from another Police Station whose names he did not know. That he heard an argument going on between C and some officers as the latter were dragging C to the cell. That about 8 police officers dragged C and also beat him up as they took him to the cell but he did not know their names. That the police men beat C using sticks and they also boxed and kicked him as he was shouting "leave me alone", and this lasted for about 30 minutes. CW1 added that C did not resist arrest, and the distance from where C was beaten from and the cell was about 15 meters. That DPC Kiconco Tibbs who was in his office, came out and told the police men to release C from the cell. CW1 further testified that he left the Station and when he returned after about 2 hours, he found that C had been released and he was on his motor bike leaving but he did not notice any injuries on him.

**Upon Cross- examination, CW1 pointed out the fact that** on the day C was beaten, he himself was off duty and was therefore not officially working; and that the distance from where he was seated and where C was beaten from was about 20 meters. He added that police officers at Kamwenge Police Station are not fond of beating suspects, and that it happened only on that day. That he did not know the person who ordered the beating.

He confirmed seeing the O/C CID and his deputy among those who beat C although he could not recall their names and he did not see them release C. That he did not know the reason why C was arrested and beaten and neither did he see the injuries that C sustained, nor see him bleeding. That he only saw C riding his motor bike while leaving the Police Station.

C also called a **Medical Expert witness known as Kiddu Mathias Mukuye (CW2),** who testified that he obtained basic qualifications from Fort Portal School of Clinical Officers, and Pediatrics at Kenyatta Medical Training Centre. That he had worked at Buhinga Hospital from 1974 up to 2012 when he retired. That after retirement he operated a Medical Clinic knows as Out-patient Day Care. That he had worked for more than 36 years and had specialized in Pediatrics. He clarifies that regarding Police Form 3 that was presented to him by C on 30th July 2012, he had indicated on it the history narrated by C as having been assaulted at the police station by 8 to 14 Police men on the orders of the District O/C CID, after C had brought the suspects who had jumped bail.

That upon examination of C, he established that C's shirt and the trouser were tom, and there were no buttons on the pockets. That when he examined C's parts of the body, he found abrasions on the right temporal sigomatic bone measuring 0.7x 1cm x 0.1cm; that another abrasion was over the right big toe which was 0.5 cmxlcmxO.lcm. That C also had a fractured dislocation ofthe right clavicle external end which is the collar bone.

He stated further that there was soft tissue injury of the thoral columbar that is, the lower region ofthe back, and ofthe thorax .i.e. vertibular region.

That the injuries on C were 72 hours (three days) old having been infected on him on 27th July 2017. That they could have been caused by a blunt object with rough surfaces. That there was need to have an x-ray of the lumber circle region and also to do a urinalysis since the kidney is within the same region.

He added that there was a swelling ofthe right clavicle and the bite ofthe tongue; and that C was complaining of neck and back pain following the kicking at his back which was thought to have damaged the kidney. He classified the injuries as grievous harm.

**During cross-examination, CW2** noted that in his long years of experience, C's medical form was the third police form he had filled. That C did not attend clinic, the same day he was beaten and when he went for treatment, he narrated the details ofwhat had happened to him.

He believed C to have picked the PF3 form from Kamwenge Police Station; and clarified that for someone to move from Kamwenge to his clinic, the time taken depended on the capability ofthe person to travel, as it normally used to take about four hours but now it was taking generally less than 45 minutes due to improvements on the road.

That he had recorded what he had seen when he examined C; and his classification was based on both the factual examination and his interpretation of what he saw. That he had recommended an x- ray of the lumber circle region and a urinalysis but was not aware if C had done these examinations. He gave clarity on the shoulder injury saying that any injury to the clavicle could lead to failure to use the effected shoulder or even to lift the shoulder. That he had also recommended a review for the patient, and which he did at the same clinic after five days and found that C had improved as a result of the painkillers given to him and bandaging of the dislocated sholder.

He clarified that C was healthy at the time CW2 gave his testimony, because he had just interacted with him seven years after examining him, and that C had told him that he was now doing his normal duties, and that if he was not healthy he would have been brought on a stretcher.

When **CW2 was re-examined** he reiterated that his classification of C's injuries was based on factual findings.

The right that C claimed to have been violated is totally protected under the Constitution of the Republic of Uganda as well as the International and Regional (African) human rights legal instruments that Uganda has ratified and adopted for protection ofthe rights ofUgandan citizens.

**The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984** (UNCAT) under Article <sup>1</sup> defines ''torture" 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 discretion 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 <sup>5</sup> of the **Universal Declaration of Human Rights** (UDHR) of 1948 prohibits acts of torture, stating that "no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". And Article 7 of the **International Convention on Civil and Political Rights** 1996 (ICCPR) similarly prohibits torture.

The **African Charter on Human and** Peoples **Rights** (ACHPR) 1981 under Article 5 also totally prohibits the aforementioned infringement, stating that "all forms of exploitations and degradation of man, particularly slave trade, torture, cruel, inhuman or degrading treatment or punishment shall be prohibited'.

Nationally, **the Constitution of the Republic of Uganda** under Article 24 prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment and Article 44 goes further to make this right non- derogable.

The afore cited UNCAT definition of torture has been applied by the UHRC Tribunal in a number of cases before including that of **Fred Tumuramye Vs Gerald Bwete and 10 others Complaint No. UHRC 264/1999** where former Commissioner Aliro Omara held that the central elements ofthe UNCAT definition oftorture are:

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

Accordingly, the evidence adduced in this matter must be evaluated to determine whether the four important elements that are identifiable in the UNCAT definition of torture are proved. Once these ingredients are proved, then C would have proved his case that he was indeed subjected to torture in contravention with the relevant laws ofUganda.

Torture is now internationally conceptualized to be the highest point of a continuous action that comprises cruel, inhuman or degrading treatment or punishment. In other words, an action ofill treatment may amount to only cruelty, degradation or inhuman treatment, or punishment, if it does not constitute or result into an effect that is sufficiently serious enough to reach the level at which torture is constituted. The distinction between the concept oftorture on one hand and, on the other, the concept of cruel, inhuman or degrading treatment or punishment is determined by the circumstances ofthe action of ill treatment that is carried out on a given victim, as well as the gravity or severity of the pain and suffering that is inflicted on the victim. Accordingly, the distinction between the two concepts should be determined according to the nature, purpose and severity ofthe effects ofthe action ofill treatment carried out on a given victim.

Therefore, my evaluation of the evidence adduced before the Tribunal in respect of the issue under my consideration now, is base on the law cited above and therefore, I must now determine whether or not the four ingredients of torture I have just summarized from the aforementioned CAT definition, have been proved or not.

As was earlier noted, C testified that he was beaten at Kamwenge Police Station by Police Officers using batons for about 20 minutes. That he was dragged towards the cell and thrown into the cell and in the process, his shoulder knocked the door to the cell. He further stated that he was no longer healthy since he had got a permanent injury.

These events were corroborated by CW1 who was working at Kamwenge Police Station at the time. He witnessed C being dragged and beaten, and also heard him shout that the police men who were assaulting him should leave him alone. CWI was able to witness this since the distance where he was and where C was being assaulted from was about 20 meters apart. He was also able to see C on his motor bike leaving after his release.

CW2, the medical expert witness did scientifically confirmed C's allegations by explaining the kind of injuries that C suffered. He confirmed that C's shoulder was dislocated and he recommended an X- ray. He also noted that with such injury, one could not carry heavy things. He classified the injury as grievous harm.

However, there were some contradictions between the testimonies of C and CW2. For instance, C said that he had a permanent injury but CW2 said that after five days, when C retuned for review, he had improved and reiterated that even after interacting with C seven years later, he observed that he was healthy and going on with his duties normally. The doctor did not therefore mention anything to do with a permanent injury on C at the time he testified before the Tribunal.

C stated that he was referred to Mulago Hospital for further treatment. He testified further that he was not able to get the said treatment after making four failed attempts at the Hospital, after which he opted for the services of traditional healers who also never healed him. One may therefore wonder why he never opted for any other hospital and this may be viewed as contributory to the increased or permanent injury to his arm that C claimed to be still affecting his life.

I have already pointed out that **Section 101 of the Evidence Act Cap 6** requires that whoever alleges to have had his or her right violated by any one and desires any court or tribunal to give judgment or a decision in his favour and against the defendant or respondent dependent on the existence ofthe facts he or she asserts, must prove that those facts actually exist.

C's evidence was therefore adduced for this purpose. Accordingly, as R's side had earlier on denied C's allegations, they were also correspondingly obligated by the same aforementioned law to challenge C's evidence by way of adducing their own evidence through defense testimonies, and also by cross-examining the witnesses on C's side, to the point where they would successfully disprove the evidence adduced to prove C's allegations.

During cross-examination, CW1 confirmed that he saw C leaving the police station on his motor bike and yet, C claimed that his shoulder was dislocated making him permanently disabled. The question to pose then is if C could ride a motor bike for a long distance from Kamwenge to Fort Portal, was he actually permanently disabled to the extend he claimed his condition to be in? .

Furthermore, C stated that he no longer operated his wood workshop that he owned before this incident, and that he only survived by being hired to dig. This also poses another question as to how a person with a permanent disability of a dislocated arm as C claimed to be, could be able to dig and earn a living from other people, CW2 however did scientifically clarify the issue by saying that if C was indeed not well, he would have been earned on a stretcher to come before the Tribunal.

<sup>I</sup> have therefore decided to regard the said contradiction in conformity with the principle of law stated in the case of **UGANDA** vs **ABDALLAH NASUR,** 1977, HCB 217, in which it was held that:

*In assessing the evidence of a witness and the reliance placed on it, his consistency is a relevant consideration. Where grave inconsistency occurs, the evidence may be rejected unless satisfactorily explained. Minor inconsistencies* *may have no adverse effect on the testimony unless it points to deliberate untruthfulness.*

C's exaggerated claims regarding the gravity of the effect of his dislocated shoulder are incredible and therefore unacceptable. However, I am accepting the evidence adduced by C's side regarding the assault that was done on C, as well as the injuries and their effects that were scientifically identified and confirmed by CW2.

I have already pointed out that R's side failed to call defence witnesses and to provide a credible and satisfactory defence. Accordingly, in this respect I am applying the principle of law that provides that any issues that are argued before court or tribunal by the plaintiff or complainant must be deemed to have been admitted where the defendant or respondent fails to adduce any defense evidence in rebuttal (see **EDEKU vs ATTORNEY GENERAL, (1995) XI KALR 24).**

Accordingly, I find that on a balance of probabilities, the State security agents who detained and ill-treated C did both individually and severally violate C's right to freedom from torture or cruel, inhuman or degrading treatment and punishment, in contravention of Articles 24 and 44 of the Constitution of Uganda.

## **Issue 2: Whether R (Attorney General) is liable for the violations**

**Article 119** of the Constitution of Uganda provides that the functions of the Attorney General shall include among others, to represent the Government of Uganda in Courts or any other legal proceedings to which Government is a party. Accordingly, since these allegations were brought against the Uganda Police Force, it was proper for the Attorney General to be the Respondent in the instant matter. This is also in line with the precedent established in the case of **MUWONGE vs ATTORNEY GENERAL,** (1967) (EA) 17, in which Justice Newbold P. gave his judgment in which he held that:

*The law is that even ifa servant is acting deliberately, wrongfully, negligently or criminally, even ifhe is actingfor his own benefit, nevertheless ifwhat he did was in the manner of carrying out what he was employed to carry out, then his acts arefor which the master is to be held liable.*

The same principal is also stated in the case of **JONES vs TOWER BOOTS CO. LTD** (1997) ALL ER 40B, in which court held as follows:

*An act is within the course ofemployment ifit is either:*

- *(1) a wrongful act authorized by the employer, or* - *(2) a wrongful and unauthorized mode of doing some act authorized by the employer.*

Accordingly, regarding this second issue of liability, it must be the State to be held liable for the violation ofthe Complainant's right.

<sup>I</sup> therefore find it fitting to hold the Attorney General vicariously liable for the violation of C's right already proved.

## **Issue 3: Whether C is entitled to any remedy**

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

At this juncture I must take into consideration the legal principle that the basic purpose of damages is to put the victim in the position he would have been had he not suffered the wrong *[Dr. Denis Lwamafa -v- Attorney General C/S No.79/1983; George Paul Emenyu& Another* **v-***Attorney General 109/1994 VKALR\.*

It has already been established that C was indeed tortured by State agetns.

Secondly, when awarding C, although I am going to consider the type of injuries he sustained which I have discussed above, I wish however, not attach any weight to the claim of his permanent disability since C himself testified that he now earns a living by being hired to dig, and the doctor said that he had interacted with C and found him to be performing his dutiesnormally.

In the complaint of **Busingye David vs Attorney General and AsiimweYasin, Complaint No. UHRC/FP/13/2006** (unreported), former Commissioner Fauzat Mariam Wangadya concluded that the complainant had been severely beaten by policemen at Buhindi Police Post to the extent of sustaining a fracture of his right leg. She therefore awarded him Ug. Shs 15, 000,000/= (Fifteen Million Shillings only).

In the Complain of **Kones Mohammed Vs Attorney General, Complaint NO. UHRC/JJA/764/2006,** Kishero Amos claimed that Mr. Kajoingi Andrew who was the then Assistant RDC of Moyo District ordered his escorts to arrest him; and that the escorts dragged him towards the Assistant RDC's vehicle while being beaten, and was put into the vehicle and taken to Itula Sub-county Headquarters. That while at the Sub-county Headquarters, he was flogged by six escorts of the Assistant RDC, the latter who saw the crowd gathering around and he ordered his escorts to stop beating the victim. That as a result of the beating and kicking, Kishero's collar bone was dislocated. The Doctor classified the injuries as harm, and added that their effects were likely to include psychological torture and the possibility of a dislocated elbow but without resulting into permanent disability and inability to be productive on the part of the Complainant. Commissioner in the instant matter who also decided the cited complaint in 2011, awarded Kishero Amos Ug. Sh 27,000,000/= general damages as compensation for the violation of his right to freedom from torture and cruel, inhuman and degrading treatment.

C's injuries in the instant matter are generally similar to those that Kishero in the cited complaint suffered.

However, due to the contradiction I noted earlier in C;s evidence, I am therefore awarding to C a lesser amount than was awarded to Kishero Amos in the cited complaint. I therefore award C Ug. Shs. 15,000,000/= (Uganda shillings fifteen million only).

I accordingly order as follows:

## **ORDERS**

- 1. The complaint is wholly allowed. - 2. The Respondent (Attorney General) is ordered to pay the Complainant Mwesigye Jackson Ndirifite , a sum of Ug. Shs. 15,000,000 (Uganda shillings fifteen million only). - 3. Interest at the rate of 10% per annum to be paid on the sum of Ug. Shs. 15,000,000= (Uganda shillings fifteen million only) calculated from the date of this decision until payment in full. - 4. Each party to bear their own costs. - 5. Either party may appeal to the High Court of Uganda within thirty (30) days from the date of this decision if not satisfied with the decision ofthis Tribunal. So it is ordered.

## **DATED AT FORTPORTAL ON THIS....(.(4? DAY OF.3^ o 17**

**PRESIDING COMMISSIONER**