Nakafero Gorret v Attorney General (Complaint UHRC 84 of 2011) [2018] UGHRC 22 (26 March 2018)

Full Case Text

![](_page_0_Picture_0.jpeg)

# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA** COMPLAINT NO: UHRC/084/2011

**COMPLAINANT** NAKAFERO GORRET :::::::::::::::::::::::::::::

### -AND-

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

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

### **DECISION**

The Complainant Nakafeero Gorret, aged 29 years a resident of Kilinyabigo Zone, Mutunchwa village, Kilinyabito Town in Wakiso District alleges that at around 4 pm on 16th April 2011 she was arrested on allegations of theft of money belonging one Kamya Robert. That upon arrest she was taken to Katwe Police Station where she was briefly detained for one night until 17th April 2011 when she was taken to Ndejje Police Post. That during her detention at Ndejje Police Post and in the presence of her husband, she was severely beaten with electric wires all over her body by the Policemen attached to the said police post until she passed out. That upon regaining her consciousness she noticed that water had been poured all over her body. That she was then taken to Katwe Police Station and released on 19th April 2011.

The Respondent represented by Counsel Susan Akello denied the allegations.

$\mathbf{w} \mathbf{e}_{\mathbf{w}} \mathbf{e}_{\mathbf{w}} \mathbf{e}_{\mathbf{w}}$

$\mathbf{1}$

At the commencement of the Tribunal hearing, the following issues were framed for determination:-

- I. Whether the Complainant's right to freedom from torture, inhuman or degrading treatment or punishment was violated by the Respondent's agent/servant? - II. Whether there is sufficient evidence to support the alleged violations? - III. Who is liable for the violations? - IV. What remedies, if any are available to the Complainant?

Before I resolve the issues I wish to note that that this matter came up for $1^{st}$ time hearing on 4th September 2014 before former Commissioner Violet Akurut Adome. At the hearing, the Respondent was not represented despite being duly served with Summons. The matter then proceeded exparte against the Respondent. At the hearing examination in chief was carried out on the Complainant and CW I Kigundu John. The matter came up for further hearing on the 18th September 2014 and the Respondent was represented by Counsel Susan Akello. Examination in chief and cross examination was carried out on Dr Edrak Immaculate CW II and the matter was adjourned to enable the Respondent cross examine the Complainant and CW I. On 11th February 2015 when the matter came up for further hearing examination in chief was carried out on the Complainant. On 22nd April 2015 the matter came up for further hearing specially cross examination of CW I but the Respondent was absent despite receipt of summons. No explanation was given for nonappearance. The Complainant's case was closed and opened for defence.

On 10th August 2016, the matter came up before me for defence. The Respondent was not represented and a last adjournment was granted to enable the Respondent file a defence. No defence witnesses or written submissions have been filed todate. The Tribunal has decided to go ahead a make a decision on this complaint based on the evidence on record.

I will now resolve the issues as they were raised.

I will handle Issue I and 2 together.

In regards to Issues I & II, the Complainant testified that at about 4:00 pm on a date she could not recall but on a Saturday in April 2011 she was arrested from Nabukeera Plaza by two security personnel who were in the company of her husband one Kamya Robert. She was then taken to Katwe Police Station where she was charged with theft of UGX 10, 000, 000/ $=$ (ten million shillings) belonging to her husband. She was briefly detained for one night at Katwe Police Station and on the following day she was taken to her husband's home in Ndejje – Zanta area in Wakiso District where she was interrogated about the alleged missing money. She was thereafter taken to Ndejje Police where she was further interrogated about the money but she denied having it. Upon denying having the money, two Police Officers namely Mugerwa and the officer in charge at the said Police post beat her for about two hours using solidor wires on the back and thighs. In order to stop the beatings her she admitted to stealing the money. She was then asked by the Police Officers to lead them to the place where she had alleged hidden the money. As they were going to the place where she had alleged hidden the money, she hatched a plan of escape but while attempting to escape she was rearrested. She was then taken back to the Police Station and beaten again afresh to the extent of being unconsciousness. The Policemen tried using a cable to try and burn her fingers but they were stopped by the officer in charge of the police post. Instead the Policemen used a cane to beat her afresh. On the following day she was called for the suspects' parade but she could not attend it. She could not walk due to the beatings which had been inflicted upon her. She forced to move out of the cells to go for suspects' parade but in the process she fell down before she could reach the parade ground. She was carried to the Officer in Charge's office and later taken for treatment. Three to four days later she was released on Police bond and after her release she sought treatment from clinic in Nalukolongo. She feels relatively better.

In cross examination she replied that she was arrested from Nabukera Palza by her husband who was in the Company of police officers.

CW I John Kigundu testified that he is a brother to the Complainant and also a crime preventer attached to Namayumba Bus Terminal Police Post. On a date he could not recall but in the month of April 2011 at around 11:00 pm he received a phone call from the Complainant. The Complainant informed him that she had been arrested and was in detention at Kibuye Police Station. On the following day he went to see the Complainant at Kibuye Police Station but he did not find her at Kibuye Police Station. He called the Complainant's husband who informed him that the Complainant had been detained at Ndeije Police Station. Upon reaching Ndejje Police Station he found the Complainant being beaten by 3 male Police Officers and one female Police office inside the female cell. The said Officers were using black wires. He later called his uncle and informed him about what had happened. Since it was a Sunday there was nothing much they could do. At about 10:00 pm he was called by the Complainant who informed him that she had been returned to Kibuye Police Station. He later went to Kibuye Police Station to see the Complainant. The Complainant was brought out of the cells but she could not walk and was being supported to walk. The Complainant was crying, in pain, could not sit neither could she talk. The Complainant was badly beaten. On the following day together with his uncle they went to see the Complainant. The Complainant was later released from custody upon the intervention of UHRC officers. He stood surety for her and later took her to the Complainant to a clinic in Kamwokya for treatment. It took the Complainant for $1\frac{1}{2}$ weeks to recover.

CW II Dr Edrako Immaculate testified that she was a part time Doctor working at African Centre for treatment and Rehabilitation of Torture Victims (ACTV). She examined the Complainant on the 17th November 2011 at ACTV. The Complainant complained of having been randomly beaten and kicked and had back pain, chest pain and palpitations. Upon examination of the Complainant she noted that the Complainant was not in pain, had no fractures, no dehydration, had a good nutrition

$\overline{4}$

status with a healed scar and some healing scars on the lower limbs that measured 10 X 2 cm long. The Complainant also had razor blade lines all over her body measuring 10 $\times$ 2 cm long, mild depression with soft tissue injury of about 40%. She put the permanent disability at 10%. Her findings are recorded on Exhibit 1. She later saw the Complainant six months later. The Complainant had improved but still had psychological problem and she recommended that the Complainant see a psychotherapist.

The right to freedom from torture or cruel, inhuman and degrading treatment or punishment is protected under Articles 24 and 44 (a) of the Constitution of the Republic of Uganda 1995 and this is an absolute/non-derogable right and as such there is no justification for its violation [see also Byamukama Akim vs Attorney General UHRC/161/2004; Kambugu Peter and Wabinyonyi Sub-County UHRC/514/2004; Ssonko Zubaili And Attorney General UHRC/1137/2000]. Torture is further outlawed by several International Human Rights instruments to which Uganda is a signatory (See Article 7 of the Universal Declaration of Human Rights 1948, Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Articles 4 and 5 of the African Charter on Human and Peoples' Rights). 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 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; John Patrick Besingiza & Another vs Attorney General UHRC/MBR/009/2007; Hakizimana Francis and Attorney General UHRC/CTR/10/2009]. The complainant's allegations are corroborated by the testimony of CW 1. CW I found the Complainant in detention at Ndejje Police Station being beaten using wires by four Police men and one female officer. When he later went back on Monday at about 10:00 pm to see the Complainant at Kibuye Police Station, the Complainant could not walk and was

$\mathsf{S}$

being supported to walk and she could not sit. As earlier noted this matter came up for hearing on the $18^{th}$ September 2014 and $22^{nd}$ April 2015 to enable the Respondent Cross examine this witness but this was not done. The Respondent waived his right to cross examine CW I. In that regard, CW I's evidence is construed as unchallenged and accepted as the truth (see Byamukama Raymond & Akello Jane vs Attorney General UHRC/MBR/22/2008). The Complainant's testimony is further corroborated by Exhibit I which indicates that upon examination, the Complainant had razor blade lines all over her body measuring 10 $\times$ 2 cm long which are consistent with the nature of wires used to beat her (see Zirimu Johnson and Attorney General UHRC/344/2004).

Torture has a purpose such as the obtaining of information or confession (Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984). From the evidence adduced before the tribunal, the Complainant was beaten by the Policemen in order to make her confess to stealing the money. With no evidence to the contrary the Complainant has on a balance of probabilities proved her case before this Tribunal. Hence the Complainant's right to freedom from acts of torture was violated.

I therefore hold Issues I & II in the affirmative.

I now turn to Issue III; In determining whether the Attorney General is liable, there is need to prove employer-employee relationship and that the perpetrators were in the course of employment at the time when the alleged violation occurred (Avi Enterprises Ltd Vs Orient Bank Limited & Another HCCS 147 of 2012; Hon. Okupa Ellijah & 2020 Others Vs Attorney General & 3 Others Misc. Cause No. 14 Of 2005; Kamulegeya Eriya and Attorney General UHRC/CTR/66/2009: Emaju Charles & 2 others vs Attorney General UHRC/SRT/018/2007; Wambi Akram Henry and Attorney General UHRC/JJ/44/2008).

There is sufficient evidence on record to show that the Police Officers attached to Ndejje Police Post and Katwe Police Station were acting within the scope of their

$\mathbf{6}$

employment, and the burden of proving the opposite shifted to the Respondent (Joseph Serwadda vs Attorney General HCCS 1422 of 2000). During the hearing of this complaint the Respondent did nothing to discharge the burden cast on him (Opio Pamena and Attorney General UHRC/FPt/50/2008). From the above, I hold that the Respondent is vicariously liable for their actions.

### I now turn to Issue IV

Having answered Issues I, II & III 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 (Article 8 UDHR and Article 53 (2) of the Constitution of the Republic of Uganda; Busingye David and Attorney General UHRC/FP/13/2006). In Elalu Medi Sebi and Attoreny General UHRC **SRT/368/2003** it was held that compensation for human rights violations is based on the fact that wrongs must be redressed and reparation made to the injured party.

In considering the amount of compensation for the violation of the Complainant's right to freedom from torture, the nature and extent of the torture, the gravity and effect of the torture if any, the fact that freedom from torture is non-derogable right and the obligation of the state to take steps to prevent torture have to be taken into account (See Odyek Bonny and Attorney General UHRC/G/124/2005; Bindemesese John and Attorney General UHRR [2008 – 2011; Chris Kamya vs Attorney General UHRC 208/2005). From the evidence adduced before this Tribunal the Complainant while in detention was subjected to acts of physical torture while in detention at Ndejje Police Post.

There was no contrary evidence, medical or otherwise to contradict or controvert the evidence of the injuries sustained by the Complainant. CW 2 who examined the Complainant noted that the Complainant had soft tissue injury of about 40%, mild depression with permanent disability at 10%. Bearing in mind the above

considerations referred to above, this tribunal awards to the Complainant a sum of UGX 8, 000, 000/ $=$ (Uganda Shillings eight million only) as general damages for the violation of her right to freedom from torture.

## **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. 8, 000,000= (Uganda Shillings eight million only) as general damages for the violation of her right to freedom from torture. - (3) The above 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.

Dated at KAMPALA this $\mathbb{R}$ day of $\mathbb{R}$ day of $\mathbb{R}$ 2018.

Mulandsq m

**MEDDIE B. MULUMBA** PRESIDING COMMISSIONER