Nsereko Geoffrey v Attorney General (Complaint UHRC 90 of 2010) [2018] UGHRC 16 (9 April 2018)


## THE REPUBLIC OF UGANDA

# IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

### **HOLDEN AT KAMPALA**

### COMPLAINT NO: UHRC/90/2010

**<u>....................................**</u> NSEREKO GEOFFREY:::::::::::::::::::::::::::::::::::

-AND-

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

### [BEFORE HONOURABLE COMMISSIONER STEPHEN BASALIZA]

### DECISION

The Complainant alleges that on 3<sup>rd</sup> April, 2010 while on his way to buy airtime at around 11.00 p.m. he was arrested on allegation of theft by policemen attached to Natete Police Station who also slapped, beat and kicked him all over his body and broke his leg. That he was later driven to Natete Police Station from where he called his brother Sebuliba Joel who secured his release on police bond and took him for treatment at Mengo Hospital.

The Respondent as represented by Mr. Hosea Kasibayo denied liability

The following issues were framed and agreed upon by the parties:-

- 1. Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents. - 2. Whether there are any remedies available to the Complainant.

When this matter came up for defence on 23<sup>rd</sup> September 2014, the **Respondent's** Counsel Mwesigye Sandra informed this Tribunal that all attempts to procure witnesses from Natete Police Station were futile. She prayed to settle the matter amicably; The complainant proposed Ug. Shs 50,000,000/ which the Respondent deemed too exorbitant and proposed payment of Ug. Shs 2,000,000. The Respondent's counter offer was rejected by the Complainant. The Respondent was then given a period of 2 months to file submissions but this was not done, and hence this decision.

#### The findings by the Tribunal.

#### -Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading Issue no. 1: treatment or punishment was violated.

I shall determine this issue within the context of the relevant legal framework established for the guarantee and protection of peoples' right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 (UNCAT) 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 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 provides that;

"No person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment."

Article 44(a) of the same Constitution makes the right absolute by stating that;

"Notwithstanding anything in the Constitution, there shall be no derogation from the enjoyment of freedom from torture and cruel, inhuman or degrading treatment or punishment"

The International Covenant on Civil and Political Rights (ICCPR) 1996 and the African Charter on Human and People's Rights (ACHPR), 1981 which have been ratified by Uganda also totally prohibit torture in all forms.

In Fred Tumuramye Vs Gerald Bwete & others UHRC NO.264/1999 the tribunal considering the elements as laid out by the UNCAT definition of torture held that in order for an act of torture to be committed, it must be proved that severe pain and suffering whether physical or mental is intentionally inflicted on the person.

in Ireland Vs. United Kingdom (1978)2 EHRR 25, the Court found that torturerequired deliberate inhuman treatment causing very serious and cruel suffering, whereas inhuman treatment or punishment involved the 'infliction of intense physical and mental suffering' which reached a minimal severity, and degrading treatment required ill treatment designed to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.' The Court went on to clearly state that in order to be classified as torture, the treatment must cause serious and cruel suffering, and that it is not the nature and severity of the act but rather the purpose for which the act was committed.

#### **Evidence**

The Complainant, Nsereko Geoffrey testified that on 3<sup>rd</sup> April 2010 while at Kabojia, around 11:00 p.m. several uniformed policemen in a taxi stopped him and ordered him into the vehicle. The said policemen were joined by about seven other police men from the direction of St. Mugwanya Primary School and they started beating him with batons all over the body as they searched him and demanded money from him. That after they searched him, the officers kicked him out of the vehicle and began beating him again. Thathe made an alarm which attracted the residents who demanded to know why he was being beaten. After alleging that he was a thief, they put him back into the vehicle and took him to Natete Police

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Station where he was released The Complainant testified further that he sustained injuries including a fracture on his leg.

The Complainant's Witness Ssebuliba Julius Joy (CWI), testified that on 3<sup>rd</sup> April, 2010 at around 11:00 p.m. while he was at his home sleeping, he received a call from the Complainant who was crying and informed him that he was detained at Natete Police Station. That he proceeded to the said police station and upon reaching there, he found the Complainant lying down on the ground near reception in a poor state, with dirty clothes, a swollen leg that looked broken and with a swellings on his right eye. He further testified that he requested the police to release the Complainant on bond which was granted and at around 1:00 a.m, he took the Complainant to Namirembe Hospital. He testified further that upon reaching the hospital, the Complainant got first aid and was advised he would be attended to by orthopedician on the following day. That on the following day, he escorted the Complainant to Bayo Clinic to get an x-ray and then. went back to Namirembe where the complainant received treatment. That the Complainant's right leg was put in a cast for some time until it was removed and the Complainant had to revert to traditional treatments for the leg.

The Complainant's second Witness Sulaiman Kayizzi (CW2) testified that on a day he could not recall at night around 8.00 p.m. he saw policemen forcing the Complainant into a van. That the officers were beating, boxing and kicking the Complainant with batons while the Complainant was crying out for help. That when he drew nearer to the van, he saw that the Complainant could not move and his leg looked broken. That the Complainant was then taken to Natete Police Station and that when he next saw him, the Complainant was walking on crutches with his leg cast in plaster.

Complainant's Expert Witness Dr. Kalungi Michael CW3, an Orthopedics officer, with Mengo hospital testified that he treated the Complainant and followed the patient's progress and treated him until discharge. That when he first treated the Complainant around 3<sup>rd</sup> April 2010, he had a fracture lower thigh tibia fibular after looking at x-ray and treated conservatively and that it was reduced well and sent him for che The Complainant's medical discharge from and x-rays were admitted into evidence.

From the evidence adduced before this tribunal, I find that the Complainant suffered severe physical pain. He was beaten by police officers attached to Natete Police station, which beating was witnessed by CW 2. He sustained several injuries including a broken leg (a fracture lower thigh tibia fibular), which injuries were seen by CW1 who secured his release from Police custody and took him to hospital. The Complainant's testimony as to the nature of the injuries suffered is further corroborated by the testimony of CW3, an orthopedic officer who treated the Complainant at Mengo hospital

The sequence of events as outlined in the evidence clearly shows that the Complainant was arrested and beaten by police officers as punishment for being a suspected thief. I therefore find on a balance of probabilities that the Complainant's right to freedom from torture was violated by the police contrary to Article 24 of the Constitution; and hence making the Attorney General vicariously liable in accordance with Article 119 of the Constitution of the Republic of Uganda.

## Issue no. 2: Whether there is any remedy due to the Complainant

Article 53 (2) of the Constitution provides that 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 held that the Complainant's right to freedom from torture was violated, I find that he is entitled to a remedy in form of compensation.

In assessing the amount of compensation for the breach of the freedom from torture or cruel, inhuman treatment for each of the Complainants, the nature of the torture or cruelty on the Complainant is relevant. It is also a relevant factor to consider that the freedom from torture is an absolute right that ought not to be infringed in all circumstances.

The Complainant has proved to the satisfaction of this Tribunal that he was beaten, kicked by the Respondent's agents that he sustained injuries on his body including a fracture on his leg. Further, the Complainant's evidence reveal that as a result of the injuries sustained from the beating, he lost his job and earnings. I will also put into account the fact that the police as a security force was established to protect the lives of the people and it is therefore unacceptable that a group of officers would gang up on unarmed citizen and beat him senseless to an extent of causing him a fracture.

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I deems it fit to award the Complainant Ug. Shs 12,000,000/= (Uganda ShillingTwelve million) as compensation for the violation of the complainant's right to freedom from torture. I In light of all the above, so award.

# ORDER

- 2. The Respondent pays the Complainant Nsereko Godfrey a sum of Ug. Shs 12,000,000/- (Uganda Shillings Twelve million) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. The said sum of Ug. Shs 12,000,000/- (Uganda Shillings Twelve million) shall attract interest at a rate of 10% per annum from the date of decision until payment in full.

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

date hereof.

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Dated at KAMPALA this ....................................

STEPHEN BASALIZA PRESIDING COMMISSIONER