Nsubuga Mukasa Moses v Attorney General (Complaint UHRC 175 of 2011) [2018] UGHRC 17 (9 April 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/175/2011

#### NSUBUGA MUKASA MOSES:::::::::::::::::::::::::::::::::::

**AND**

#### ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

### **DECISION**

# [BEFORE HONOURABLE COMMISSIONER STEPHEN BASALIZA]

The Complainant Nsubuga Mukasa Moses alleges that on 8th September 2011 at around 3:00pm, he was arrested by security operatives from the District intelligence security office who had called him to pick his earlier on confiscated passport. That upon his arrest, he was taken to the office of the Deputy District Intelligence Security Officer located at Hotel Equatorial from where he was interrogated, beaten on the ankles and hands and asked whether he was ready to confess to the truth. That he was driven in a grey double cabin pickup to Makerere University Business School (MUBS) Nakawa from where one officer blind folded him and told to lie down as the officer stepped on his back. He further alleges that he was taken to an unknown destination, pushed out of the car unto the stair case, thereby

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sustaining a broken hand. That he was detained for three weeks, taken to the Office of the Chief of Military Intelligence Mbuya for interrogation and taken back to the safe house. That on the 7th November 2011 he was taken to Jinja Road Police Station and on the next day, produced before the High Court of Uganda at Nakawa, paid a fine of Ug. Shs.100, 000 and was released. The Complainant further alleges that his property comprising of a wallet, identity card, diary, two mobile phones and passport were not returned to him.

The Complainant contends that these actions amount to a violation of his rights for which he holds the Respondent vicariously liable and seeks to be compensated.

## The following issues were raised for the resolution of the Tribunal.

- 1. Whether the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents. - 2. Whether the Complainant's right to personal liberty was violated by the Respondent's agents. - 3. Whether the Complainant is entitled to any remedy.

Before I resolve the above issues I wish to note that I delivered a decision in this matter on the 15th February 2017 and on 20th April 2017 the respondent in letter addressed to the Secretary to the Commission sought to have the decision reviewed. In the application the respondent counsel stated that the written submissions in defence which had been filed with the Commission - Central Regional Office on 18th February 2015 had not been taken into consideration before reaching a decision hence this reviewed decision.

At the hearing the respondent cross examined the complainant and her witness but did not call defence witnesses but opted to file written submissions in defence.

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Nonetheless, the complainant has the burden to prove the allegations against the respondent's agents on a balance of probabilities (see Miller vs Minister of Pensions [1942] 2 ALLER 272). In Betty Tibaleka & 2 Ors vs. Dr. C. R Vicent Karuhanga [1995] KALR 904 citing Section 101 (1), 102 of the Evidence Act Cap 6, it was held that it is trite law that he who alleges the existence of a given fact must prove it.

I will therefore proceed to resolve the issues.

### **Resolution of issues**

Issue one: Whether the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents.

The right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected under Article 24 of the Constitution of the **Republic of Uganda**, **1995**. It provides that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. This right is further protected as a non derogable right under **Article 44 (a)** of the same Constitution.

The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), to which Uganda is a signatory 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 or a public official or any other person acting in an official capacity".

**Article 1** of the CAT has been interpreted by this Tribunal in the case of $\mathbf{1}$ Fred Tumuramye and Gerald Bwete & Others UHRC NO 264/1999. where Commissioner Aliro Omara spelt out the ingredients 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.

The court in the case of Ireland V United Kingdom (1978) 2 EHRR 25, differentiated torture from inhuman treatment or punishment and from degrading treatment or punishment by noting that torture requires a '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 minimum level of severity, while 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'.

Having discussed the law on torture or cruel inhuman or degrading treatment or punishment, I now move to relate the law to the evidence.

The Complainant Nsubuga Mukasa Moses in his testimony before the tribunal stated that he was arrested and taken to the DISO's (Kampala Division) office at Hotel Equatorial. That while at the DISO's office he was beaten on the back, ankles and hands while being asked when he last saw Osama Bin Laden; why he was taking pictures of the Ugandan Embassy in Kenya and to tell them which terrorist group he was working for. He further testified that he was driven in a grey double cabin car to MUBS Nakawa from where one officer got his shirt, blind folded him and told him to lie

down as he stepped on his back. He further stated that he was pushed out of the car, and kept in a safe house for two months before being taken to CMI offices for interrogation. That after a week at CMI offices he was taken to the Ministry of Internal Affairs and then produced before the Chief Magistrate's Court in Nakawa on charges of using a forged passport. The court ruled that he either paid a fine of Ug.shs 100,000 or be sentenced to two months imprisonment. He chose to pay the fine of Ushs. 100, 000 and was released.

During cross examination, the Complainant stated that he went to Nairobi in July 2011 to visit a friend Anthony Kayemba and that his sonny camera and passport were confiscated the same month because he wanted to take pictures of the Ugandan Embassy. He further stated that he was issued with a travelling certificate that he used to travel back. He confirmed the fact that he was called by Kiddu to receive his passport a month after his arrival. He travelled back as a free man and it took him a month without hearing from the embassy. He came back to Uganda in July and that he was in Kenya for three days. That he only heard from the Embassy after a month, and he was not deported. He retaliated that he received a phone call from Kiddu to receive his passport. That he never reported the matter to police about his passport since he was told he would be getting it back. He added that he was taken to the DISO's office and beaten on the knees and that he had medical evidence to that fact. He confirmed that he was released on 8th October. It was true he was convicted and asked to pay a fine of Ug. Shs.100, 000 which he paid. He further stated that he didnot lodge the complaint to the commission but his friend Hanza Mukiibi did and he was charged for passport forgery which he pleaded guilty and not terrorism.

During re -examination he stated that he had gone to Nairobi to visit his friend Kayemba and that Kiddu called him to receive his passport, he was arrested on 8th August 2011.

Complainant's witness Mukiibi Hamza testified that he knew about the Complainant's travel to Nairobi and how he had returned without a

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passport. After two months, the Complainant informed him that some people had contacted him to pick it. In September 2011 he found the Complainant near hotel Equatorial being held by two people dressed in civilian clothes. As he tried to get Mukasa's phones the men who were holding Mukasa shouted and ran after him; seeking refuge in Kakooza Mutale's office from where a police officer who escorted him back to the office of the deputy DISO. At the DISO's office, Mukasa was interrogated and beaten on his hands, legs, knees and joints and then taken in adouble cabin pick up. He was asked by Mukasa's Aunt and he reported the matter to the Uganda Human Rights Commission Central Regional Ofice. Mukasa was traced for about two months and that he met him at Jinja road police station in September 2011 when he was being taken to court. While at court the case against him was being in possession of two passports in different names he was asked to drop the passports at immigration. That from court he was taken to hospital since he complained of stomach pain, legs and several body part aches.

During cross examination he stated that he reported the complaint to UHRC. That Mukasa was arrested because his passport had issues. He added that he didnot know when Mukasa was arrested. He facilitated him on picking his passport on 21st September and that upon his arrest Mukasa called him so when he found Mukasa handcuffed he decided to run away because he was scared. Mukasa was released after two months of his arrest. He added that he was not sure about the month Mukasa was arrested.

On re-examination the Complainant's witness stated that Mukasa was deported because his passport was confiscated and that he was arrested because he had two passports.

Another witness Dr. Conrad Ntwatwa testified as a medical expert and stated that he saw the Complainant on 9th November 2011, complaining of chest, back and lower limb pain lasting two months. That he reported that it was as a result of assault by security operatives. That apart from muscular skeleton pain he had pus in the ears everything else was normal and in good

condition after examination. He was treated on pain killers and given a muscle relaxant and advised to do exercises. He asked the complainant to return for review after two weeks but he didnot. The medical report was admitted in evidence as the Complainant's exhibit and marked as Exhibit 1.

During cross examination Dr. Conrad Ntwatwa stated that when the Complainant reported he gave his history and that he didnot do tests but only did objective examinations. He added that in medicine 80% is from what the patient tells you and the rest is through tests and from Nsubuga's testimony it was not necessary to do further tests because the complaint was for two months and most organs were in a fair condition.

During re-examination the Witness stated that Nsubuga experienced pain in the back, chest and lower limbs and no injury was noticed.

The Respondent submitted that the complainant and his witness in their testimonies contradicted each other and were not truthful. Counsel for the respondent further relied on the complainant's medical evidence which he argued that the medical practitioner who adduced evidence on behalf of the complainant, during crosses examination testified that he was looking good and appeared to be in a normal condition without any swellings and the doctor could not rule out the possibility of the complainant feigning pain. That the medical expert concluded that the signs and symptoms could not be consistent with torture.

Having established the evidence before tribunal and putting into consideration of the Respondent's written submissions, I will again evaluate whether the ingredients of torture have been proved.

The act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person was proved by the Complainant in his testimony that he was arrested and taken the DISO's office at Hotel Equatoria where he was beaten on the back, ankles and hands and asked whether he was ready to confess to the truth. His testimony was corroborated by the testimony of his witness Mukibi Hamza who stated that he witnessed Nsubuga Mukasa being beaten on the hands, legs, knees and joints before being taken away in adouble cabin pick up. Additionally the medical report admitted in evidence indicated that the Complainant was still experiencing pain in the chest, lower limb and back by the time he went to seek medical treatment.

The Complainant stated that while he was being beaten he was asked when he last saw Osama Bin Laden, why he was taking pictures of the Ugandan Embassy in Kenya and to tell them which terrorist group he was working for. This shows that he was beaten for the purpose of obtaining information.

And lastly the fact that this took place in the DISO's office was an indication that all acts committed were instigated and with the consent of a public official.

The Respondent's argument basing on the expert witness's testimony that the complainant appeared normal without swellings and was likely to be feigning pain does not disprove the complainant's claim. The respondent Counsel however conveniently omitted the fact that the medical expert testified that the complainant also exhibited pain and pus in the ears.(emphasis mine). The doctor further stated that the complainant had muscular skeleton pain and was issued pain killers and muscle relaxers which indicate that the complainant indeed suffered pain.

However taking into account of the respondent's submissions in regard to this issue, I find that the degree of pain was not so severe as to amount to torture but was to a lesser degree which amounts to the violation of cruel, inhuman and degrading treatment or punishment.

I therefore still resolve this issue in the affirmative. The Complainant's right to freedom from cruel, inhuman and degrading treatment or punishment was violated contrary to the Constitution of the Republic of Uganda and other regional and international human rights instruments to which Uganda is a party.

## Issue two: Whether the Complainant's right to personal liberty was violated by the Responder's agents

The right to personal liberty is guaranteed for all peoples by Human Rights law at International, Regional (African) and National (Uganda) levels.

The Universal Declaration on Human Rights Article 3 provides that everyone has the right to Liberty and security of person.

The international Covenant on civil and Political Rights (1966) under **Article 9(1)** provides that everyone has the right to liberty and security of $\mathbf{A}$ person. No one shall be subjected to arbitrary arrest or detention.

**Further Article 9 (3)** states that everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release

The African Charter on Human and People's Rights provides under **Article 6** that every individual shall have the right to liberty and to the Security of person. No one may be deprived of his freedom except for reasons and conditions previously laid down by the law. In particular no one may be deprived of his freedom except for reasons and conditions previously laid down by law.

The 1995 Constitution of the Republic of Uganda, under Article 23 guarantees and protects the right to personal liberty as a positive right for everybody; and also clearly states that this right can only be limited under the circumstances that are specified under **Article 23 (1)** of the same Constitution. Accordingly **Article 23 (4)**, guarantees that anyone who is arrested and/or detained on suspicion of having committed or about to commit an offence under the laws of Uganda, must be released on Police Bond or taken to court as soon as possible but in both cases, not later than forty-eight hours from the time of his or her arrest. This same legal requirement is again specifically and explicitly stated in **Section 25 (1) of** the Police Act Cap 303.

The key question on which I must take a decision regarding the issue under my consideration is whether the Respondent's agents did actually detain Nsubuga Mukasa Moses illegally, in breach of Article 23 (4) of the Constitution of Uganda and Section 25 (1) of the Police Act, and also ignored the relevant provisions in the International and African Regional human rights legal instruments I have cited already.

It is the Complainant's testimony that he was arrested by persons he didnot know and taken to the DISO's office Kampala Division at Hotel Equatorial. That he was interrogated and asked when he last saw Osama Bin Laden. He was also asked why he was taking pictures of the Ugandan Embassy in Kenya and to tell them which terrorist group he was working for. He further stated that he was later taken to Nakawa blindfolded and kept in a safe house for two months. That he was later taken back to CMI offices interrogated and asked the same questions. After a week at CMI offices he was taken to the Ministry of Internal Affairs from where he was taken to the Chief Magistrate's court in Nakawa on charges of using a forged passport. The court ruled that he either paid a fine of Ushs 100,000 or be sentenced to two months imprisonment. He chose to pay the fine of Ushs.100,000 and also ordered that the passport be destroyed as it had been proved to have been feloniously obtained or processed. The complainant didnot mention the date when he was arrested during examination in chief but i note that during re-examination he stated that he was arrested on $8th$ August 2011.

Mukiibi Hamza the Complainant's witness stated that in September 2011 he found his friend Nsubuga Mukasa at a place near hotel Equatorial being held by two people dressed in civilian clothes. He saw Nsubuga Mukasa being interrogated and beaten at the office of the Deputy DISO and was driven away in adouble cabin pick up. That Mukasa was traced after two months and that he met him at Jinja road police station in September 2011when he was being taken to court.

The complainant's witness's testimony $\quad\text{ is }\quad$ inconsistent with the Complainant's with regard to the month when the Complainant was arrested. As a person who reported the complaint to this Commission, I note that the Witness referred to the date of 8th September 2011 as the date of the Complainant's arrest. I have also noted from the witness's testimony that he mentions having seen the complainant in September while he was being taken to court. He also stated that the Complainant after his arrest was traced after two months and yet during cross examination the witness stated that he could not remember the date when the Complainant was arrested.

I will therefore disregard the first contradiction since the rest of the witness's testimony is consistent with what the Complainant stated that is that he was kept in the safe house for two months and also the witness stated that the Complainant was traced after two months.

In order for the tribunal to determine the matter in a just way I have decided to refer to the findings of investigations carried out by the Uganda Human Rights Commission investigators which indicate that the Deputy DISO Ssewa John made a statement in which he stated that on 8th September 2011 when he got to his office at around 5:15pm he found five people near the door way and three of them informed him that they were from the Anti-Terrorism Unit and in his view the other two were Musa Nsubuga Mukasa who is the Complainant and his friend one Hamza Mukiibi. He also stated that he didnot know about the arrest and was unable to account because the operation was carried out by the Anti-Terrorism Unit.

I will take judicial notice of the court order issued by the Chief Magistrates Court of Nakawa at Nakawa issued on 8th November 2011 by His Worship Opolot Mackay. The order indicates that the Complainant (then Accused) was sentenced to a fine of Ug. Shs 100,000 and his passport to be destroyed as it had been proved have been feloniously obtained or processed.

This is consistent with what the Complainant had earlier stated.

The Respondent Counsel in his submissions challenged the complainant's evidence and submitted that both the complainant and his witness were not sure when the arrest of the complainant was effected nor when they were they were released. I also note that counsel relying on the case of

Safati Kiwanuka vs. Kamuli Administration 1994-1995 HCB 74 and Edirisa Semakula Vs Attorney General CS No.6/197 admitted that the complainant had been arrested and detained. Counsel submitted further that it would be hard for the Tribunal to arrive at a decision because the complainant and his witness were relatively young and could not recall when the complainant was arrested and detained. I disagree with Counsel for the Respondent on this particular argument which under the circumstances that the respondent admitted that the complainant was arrested and detained, it was upon the respondent to prove that the detention was lawful.

I therefore find that on the balance of probabilities, I find that the evidence available indicates that the Complainant was in illegal detention from 8th September 2011 to 8th November 2011; he sought medical treatment on 9th November 2008; and hence his right to personal liberty was violated.

Since the operation was carried out by security operatives including the Anti-Terrorism unit, I find the Attorney General vicariously liable for the violation of the Complainant's right to liberty.

## Issue Three: Whether the Complainant is entitled to any remedies.

Art 53(2) (b) of the 1995 Constitution of Uganda is to the effect that the Commission, if satisfied that there has been an infringement of a human right or freedom, shall order for redress which may include compensation.

Under Article 23(7) of the Constitution of the Republic of Uganda, a person unlawfully arrested, restricted or detained by any other person or authority, shall be entitled to compensation from that other person or authority whether it is the state or an agency of the state or other person or authority

Having held that the Respondent's servants/agents violated the Complainant's rights to protection from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty, it follows that he is entitled to compensation by the respondent.

In assessing the amount of Compesation which the Complainant should be awarded I will take into consideration the fact that freedom from torture or cruel, inhuman or degrading treatment or punishment is an absolute right. the nature and extent of the torture and/or cruelty, the nature and the extent of injuries resulting from the torture or cruelty and the duration the complainant spent in illegal detention.

I accordingly award the Complainant Ug.shs 3,000,000(Three Million Uganda Shillings) as general damages for the violation of his right to freedom from torture or cruel, inhumane or degrading treatment or punishment by the respondent's agents.

With regard to the right to personal liberty, in the case of **Bakaliraku** Vincent & Anor. -And- Attorney General Complaint No. UHRC 316/2004, the Tribunal referred to precedents of High Court, to award complainants U. Shs2, 000,000= (Two million Shillings) for illegal detention of every seven $(7)$ days.

From the above findings, it is proved upon a balance of probabilities that the Complainant was detained from 8th September 2011 to 8th November 2011 and hence spent sixty two days in detention.

Taking into consideration the respondent's argument that indeed both the complainant and his witness could not remember the exact dates when the complainant was arrested or released but only estimated that it could have been two months, and also there were inconsistencies concerning the dates stated by both the complainant and his witness, am inclined to award a lesser award than what I had originally awarded.

I therefore deem a figure of Ug. Shs 10,000,000 (Sixteen Million Uganda Shillings) as adequate compensation to the Complainant for the violation of his right to personal liberty. I so award.

## **ORDER**

- 1. The complaint is allowed. - 2. The Respondent (Attorney General) is ordered to pay to the Complainant Nsubuga Mukasa Moses a total sum Shs.13,000,000/= (Thirteen Million Uganda shillings only) as follows : - a) General damages for violation of the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment -Ug.shs 3,000,000.(Uganda Shillings three millions) - b) General damages for violation of the Complainant's right to Personal liberty - Ug. Shs 10,000,000(Uganda shillings Ten Millions) - 3. Interest at 10% per annum to be paid on the mentioned total amount calculated from the date of this decision until payment in full.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date of this decision.

So it is ordered.

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

HON. STEPHEN BASALIZA PRESIDING COMMISSIONER