Ntambi Manisur v Attorney General (Complaint No. FPT/062/2012) [2022] UGHRC 22 (20 January 2022)

Full Case Text

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### **THE REPUBLIC OF UGANDA**

### **THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL**

#### **HOLDEN AT FORTPORTAL**

# **COMPLAINT NO. FPT/062/2012**

**NTAMBI MANISUR::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

#### **AND**

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

### **{BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO}**

#### **DECISION**

The is a complaint brought by Ntambi Manisur against the Attorney General in which he alleges that on 29th January 2012, he was arrested by police officers attached to Fort portal Police Station on allegations of robbery and possession of an illegal fire arm. That he was put on a pick up and taken to Fort Portal Police Station. That upon reaching the said police station, he was beaten all over his body by the police men and military soldiers using sticks for over an hour. The complainant further states that his trousers were removed half way down and the officers squeezed his private parts in order to obtain a confession out of him. That he was then taken to Muhooti barracks and detained in the cells. He further alleges that as he was being taken to the cells, he was dragged since he could not walk because ofthe beating which had been inflicted upon him, that he was taken back to Fort portal Police Station where he was detained until 7th Februaiy, 2012 when he was released on bond.

The Respondent's Counsel Mr. Ndibarema Grace denied the respondent's allegations and opted to put up a defence.

### **Issues:**

The issues for determination before this tribunal are:

- (i) Whether the respondent's Agents (Attorney General) violated the complainant's right to freedom from torture or cruel, inhuman and degrading treatment or punishment. - (ii) Whether the respondent's agents (Attorney General) violated the complainant's right to personal liberty - (iii) Whether the respondent (Attorney General) is liable for the violations - (iv) Whether the complainant is entitled to any remedies

Before resolving the above issues, I wish to state that the following;

First and foremost, this matter was heard by Hon. Comm. Steven Basaliza and Hon. Comm. Victoria Businge-Rusoke consecutively. The decision is therefore based on their record of proceedings.

Secondly, in this matter the respondent never called any witnesses in defence ofthe matter nor did he file written submissions despite several adjournments to do the same. The complainant and his witnesses testified and were cross examined by respondent's counsel. However, I note that this did not do away with the complainant's responsibility to prove his case before the Tribunal on the balance of probabilities.

Under S. **101(1) ofthe Evidence Act Cap 6,** it is stated 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."

**Under S. 102 of the Evidence Act,** it is stated 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."

I now turn to the issues:

# **1. Whether the respondent's servants violated the complainant's right to protection against torture, cruel, inhuman and degrading treatment.**

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) gives an internationally agreed legal definition of torture by stating 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".

Considering National Instruments, the Prevention and Prohibition of Torture Act, 2012 under section 3 defines 'torture' as;

"any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as obtaining information or a confession from the person or any other person, punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit; or intimidating or coercing the person or any other person to do, or to refrain from doing, any act".

The Constitution of the Republic of Uganda under Article 24 clearly prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

The International Covenant on Civil and Political Rights (ICCPR) 1996, which prohibits torture or cruel, inhuman and degrading treatment or punishment under Article 7, which states; "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The United Nations' Universal Declaration of Human Rights( UDHR) has evolved into treaty obligations through the International Covenant on Civil and Political Rights of 1966 (ICCPR)."Article 7 of the ICCPR reechoes clearly Article 3 of the UDHR, and includes another prohibition deriving from the trial of the Nazi doctors at Nuremberg". Article 7 of the Covenant provides that;

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The Covenant states that while some rights may be the subject of derogation during a "time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed," the provisions of Article 7 prohibiting torture and ill-treatment are not subject to derogation." In addition to Article 7's prohibition against

torture and ill treatment, Article 10 of the Covenant requires that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

Similarly, the Universal Declaration of Human Rights (UDHR) 1948 states under Article 5 that; "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until 18th September, 2012 upon the commencement of the Prevention and Prohibition ofTorture Act, 2012. However, since the law cannot be applied retrospectively, the only definition that will be adopted in this matter is the one provided in the UNCAT cited above.

The actions committed against the complainant would constitute "torture" if the same were proved taking into account the definition of torture as provided under Article 1 of the CAT.

The Convention Against Torture imposes certain obligations to prevent and enforce the prohibition against torture and cruel, inhuman, or degrading treatment. Among other obligations, State parties that have adopted the Convention Against Torture must ensure that "any statement which is established to have been made as a result of torture ... not be invoked as evidence in any proceedings." As with the Covenant, the Convention Against Torture provides that the prohibition against torture is a non derogable obligation, and no order from a superior officer or a public authority may be invoked as a justification of torture." Article 1 of the Convention Against Torture is widely referenced by international bodies and has been deemed the de facto "first port of call" for those seeking a definition of torture."

The Uganda Human Rights Commission Tribunal has subsequently adopted an evolving standard for determining when acts constitute torture, a standard that takes into account present-day conditions and human rights norms. This Tribunal emphasizes that the prohibition

against torture enshrines one of the most fundamental values of democratic societies that must be respected even in the most difficult circumstances, the Tribunal was established to protect human rights and fundamental liberties, which "correspondingly and inevitably requires greater firmness in addressing breaches of the fundamental values of democratic societies." I observe that the 1995 Constitution of the republic of Uganda is a "living document," and I would like to express that "certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in the future." In making a determination regarding whether torture or cruel, inhuman, or degrading treatment has occurred, the Tribunal has considered;

a) The nature of the act or acts involved;

b) The severity of the physical and/or mental harm suffered as a result of the acts;

c) The purpose of the actor, evidence on the purpose and Intent of torture.

d) The official status and/or individual responsibility of the actor.

International human rights scholars have also analyzed these elements and have offered commentary on how they should be applied to distinguish torture and inhuman or degrading conduct. These four elements, and the jurisprudence that has interpreted them, are discussed more below in the evaluation of evidence.

I shall evaluate the evidence adduced in order to determine whether the allegations by the complainant amounted to the level of severity that constitutes what would be categorized as torture or whether the effects of the same actions amount to what is categorized as cruel, inhuman or degrading treatment or punishment.

Once the above elements are proved against the Respondent's agents, then it can be established that the Complainant was indeed subjected to torture contrary to the laws of Uganda.

In **Fred Tumuramye -and- Attorney General UHRC NO. 264 of 1999,** Commissioner Aliro Omara outlined the central contours of torture as stated in the CAT to bear the following: " 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.

## **Evidence**

It is the Complainants testimony that on 29th January 2012 at around 9:00pm, while in his house, he heard someone knocking on his door and said "I am your chairman", but he replied "I know the voice of my chairman, may be you are a thief', and heard people talking, and that he was told to open, and that when he opened the door, some people who he did not recognize but had guns about two (2) others were in the compound dressed in police Khaki uniform and others in army uniform and that they then insisted he had a gun. He further testified that he denied having a gun and told them so. That the two officers with guns pushed him inside and asked him for the gun. That when he denied someone dressed in police uniform slapped him. That he asked him why he had slapped him, he told him he is a thief.

He further alleges that he was taken to police then beaten, slapped and kicked. That the one who kicked him was seated behind with him dressed in an army jacket, another civilian clothes and another police uniform. That it took 30 minutes to reach police and he was being beaten seriously. That they were using the sticks size of a bottle and length of a metre. That they beat him all over the body and removed his trousers.

He further alleges that they squeezed his testicles and wanted him to confess that that he had stolen those goods. That the squeezing went on for about 10 minutes and they were using their hands.

## He added;

*"In the morning I found myself in Muhooti barracks as I saw soldiers in morning parade about 30 of them. I had been tied with my hands behind with my door curtains. Even in the cells at Muhooti barracks was tied until was untied at parade".*

**CW1,** Bakari Kawekwa Ntambi testified that the Complainant is his son. He testified that he didn't see him at Fort portal but saw him at Muhooti barracks. That the complainant later felt sick when he was in the cell. He stated that he talked to him but he was not yet badly off. That he went to police after arrest but was taken to prison. That he saw him at Muhooti barracks clinic with fever for one day. From Muhooti, the complainant was taken to police and that is when he got badly off and was released and taken to Sarah clinic. He spent 4-5 days and he became okay.

**CW2,** Ismail Katende testified that the complainant was his brother. He testified that in 2012 at 9:00pm as he was going home, he saw people torching him and one got a pistol and put on his face and said they want a gun in this area and he kept quiet. That others went and two people went to Ntambi's house and forced him to bring the gun. That for him he was put on the side and saw Ntambi being arrested and being beaten for an hour and was taken away. That he then told his father. That the father told him they would look for Ntambi the following day at police station but he was not there. That he saw him at Sarah hospital after a week and he was badly off.

During cross examination, the Complainant testified that he was beaten from his home and at the police station.

Further on cross examination, CWI testified that the complainant was tortured between 9:00 - 10:30 hours while at their home, Mzee's Bakari Kawekwa's home from inside and outside the house . He further testified that there was no light in the house as it was dark. He stated that he was not inside the house but outside and he heard the complainant yelling but he did not know the people who beat up the complainant.

**CW3** Dr. Abigaba Sarah, the expert witness testified that she is a medical personal and owns a clinic called Sarah Medical Clinic located along Kasese Road opposite Kobil. She stated that she holds a diploma in medical school clinical officers, which she obtained in 1990. She stated that she could not remember the complainant since a lot of time had gone by since.

She interpreted the outpatient medical form from Sarah Medical Clinic as showing name of the complainant, Ntambi Mansul. She stated that the complainant's blood pressure could not be recorded as he was weak. The DOA (date of admission) was recorded as 12th February 2012 DOD (date of discharge) on 14th February 2012. She stated that on discharge it showed that the Complainant was suffering from GIT infections on Immune Suppressive Syndrome. That he was treated with IV - intravenous fluids hydrocotizone, IV-fragile and antibiotics.

That the patient was given hyroxcline 500mg for two weeks, Tabs nalydixic 500mgs for 5 days. He was weak, blood pressure was low and was given hydroxine injection to raise the blood and weight was not taken as he could not stand and was given a GIT injection. That the patient was vomiting and was dehydrated. She stated that GIT is a bacterial injection after suppression of the immune system may be due to HIV, stress, diabetes, cancer or drugs.

The medical document was tendered in to form part of the complainant's evidence with agreement of respondent counsel and marked Exhibit II.

On cross examination, CW3, testified that the patients' blood pressure could not be recorded as it was low. She confirmed that a GIT infection is a bacterial infection which could be caused by also food poisoning, bacteria or virus. She also confirmed that HIV and cancer could also cause minor suppression.

**First and foremost** on whether actions of torture caused severe pain and suffering to the victim both physical and mental. We have to establish whether the actions meted out onto the Complainant amounted to either torture or to a lesser offence of cruel, inhuman and **y** degrading treatment. **The Special Rapporteur 1986 report on Torture or cruel, inhuman and degrading treatment or punishment** includes a listing of the types of actions that constitute torture. Some of the acts on the list are acts of commission, such as beating, burning, and suspension in water, among others. Also taken into account are other factors for instance the nature of the harm caused. **According to a Journal by David Weissbrodt and Cheryl Heilman of University of Minnesota Law School on Defining Torture and Cruel, Inhuman, and Degrading Treatment,** in order to establish torture you have to consider the severity of the resulting harm. The minimum level of severity is relative, depending on the circumstances of the case. In an approach that originated with the European Commission and Court of Human Rights, international bodies have held that the harm suffered must attain a minimum level of severity to constitute torture or inhuman or degrading treatment. Both the African Commission on Human and Peoples' Rights and the Inter-American Commission have adopted the European Court of Human Rights' conclusion that the minimum level of severity "depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the victim's age, sex and state of health. David Weissbrodt writes that a number of tribunals have also used the degree of suffering to distinguish between conduct constituting torture and that constituting cruel, inhuman, or degrading treatment or punishment. To constitute torture, according to these tribunals,

conduct must result in severe physical or mental pain or suffering. That severe harm may be either physical or mental, and in many cases, both types of harm are alleged and supported by medical or other corroborating evidence.

It was **Complainant Ntambi Manisuru's** testimony that the two officers with guns pushed him inside and asked him for the gun. That when he denied someone dressed in police uniform slapped him. That he asked him why he had slapped him, he told him he is a thief.

He further alleges that he was taken to police and beaten, slapped and kicked. That the one who kicked him was seated behind with him dressed in an army jacket, another civilian clothes and another police uniform. That it took 30 minutes to reach police and he was being beaten seriously. That they were using the sticks size of a bottle and length of a metre. That they beat him all over the body and removed his trousers.

He further alleges that they squeezed his testicles and wanted him to confess that that he had stolen those goods. That the squeezing went on for about 10 minutes and they were using their hands.

**(CW1)** Bakari Kawekwa Ntambi testified that the Complainant is his son. He testified that he didn't see him at Fort portal but saw him at Muhooti barracks. That the complainant later felt sick when he was in the cell. He stated that he talked to him but he was not yet badly off. That he went to police after arrest but was taken to prison. That he saw him at Muhooti barracks clinic with fever for one day. From Muhooti, the complainant was taken to police and that is when he got badly off and was released and taken to Sarah clinic. He spent 4-5 days and he became okay.

CW2, Ismail Katende testified that the complainant was his brother. He testified that in 2012 at 9:00Pm as he was going home, he saw people torching him and one got a pistol and put on his face and said

.they want a gun in this area and he kept quiet. That others went and 'two people went to Ntambi's house and forced him to bring the gun. That for him he was put on the side and saw Ntambi being arrested and being beaten for an hour and was taken away. That he then told his father. That the father told him they would look for Ntambi the following day at police station but he was not there. That he saw him at Sarah hospital after a week and he was badly off.

CW3 Dr. Abigaba Sarah, the expert witness testified that the Complainant was admitted in hospital for a GIT infection. She went ahead to confirm during cross examination that a GIT infection could be caused by food poisoning, bacteria or virus. She testified that the patient was diagnosed with Immune Suppressive Syndrome that occurs due to HIV, stress, diabetes, cancer or drugs. And that is why he was being treated with anti-biotics.

Having analysed the above evidence, it is pertinent that I made several observations concerning the evidence of the Complainant. Critically evaluating all evidence, I will attach minimum reliance on the medical evidence in this case. The medical report from Sarah Clinic does not show a link between the disease he was diagnosed with and his allegations of torture. In the experts testimony and the medical report it is not indicated anywhere that this patient was being treated for injuries sustained as a result of being beaten. I will therefore disregard his piece of evidence and consider other pieces of evidence as adduced by the Complainant in corroboration of his allegations. Medical . evidence is not always mandatory in proving an allegation of torture. The position of case law is that one need not have medical evidence in order to prove assault. In the case of **FRED KAINAMURA AND ANOTHER vs ATTORNEY GENERAL, 1994, KALR 92,** in which .dustice Okello held as follows:

"It is not a requirement of the law that every allegation of assault must be proved by medical evidence. If a witness says;

*"he boxed me and kicked me", then that is the evidence of assault. You do not need medical evidence to prove that he was boxed and kicked. Medical evidence helps to prove the gravity ofthe assault".*

The same principle is also stated in the case of **BLANDINA NSHAKIIRA vs KAMPALA CITY COUNCIL, HCCS (248/02 (24/5/04 AT KAMPALA)** in which Justice Yorokam Bamwine also held as follows:

*"A person can testify in court as to her injuries without the aid of an expert medical witness as long as the party describes the injuries clearly. —while it is prudent practice to seek expert opinion of the doctor on the nature ofsuch injuries, it by no means implies that absence of such evidence would necessarily be fatal to the plaintiff's case. It must all depend on available evidence and its quality".*

The testimonies ofthe witnesses all seem to corroborate each other that the Complainant was beaten. The complainant testified that he was taken to police then beaten, slapped and kicked. That the one who kicked him was seated behind with him dressed in an army jacket, another civilian clothes and another police uniform. That it took 30 minutes to reach police and he was being beaten seriously. That they were using the sticks size of a bottle and length of a metre. That they beat him all over the body and removed his trousers. Cwl and CWII's testimonies also corroborate the complainant's testimony.

It is an established principle in the case of *Aksoy* **Vs** *Turkey, (1195) 21 EA 573,* in which the European Court held that:

*"Where an individual is taken into police custody in good health but isfound to be injured on release, it is incumbent on the Police authority to provide a plausible explanation as to the cause of the injury, failing which a clear issue arises".*

The Complainant was in good condition before this arrest but was found to be in bad condition after this arrest. The arresting authorities should have provided an explanation for this bad condition of the complainant but did not.

It is the finding of this Tribunal on a balance of probabilities that the Complainant was subjected to acts of physical torture. I therefore resolve this issue in the affirmative.

In assessing damages, the Tribunal takes into account that freedom from torture is a non-derogable right, and therefore, its violation is always a deliberate abuse and breach of a fundamental right guaranteed absolutely by the Constitution. In this complaint, there is no doubt that the servants or agents of the respondent chose to deliberately torture the complainant as a method of investigation. The injuries were severe. The Complainant is awarded Ushs. 5,000,000/= [Uganda shillings Five million only] as full and final compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

## **Issue no. 2**

## **Whether the Complainant's right to personal liberty was violated by the Respondent.**

The right to personal liberty is guaranteed and protected by International, Regional (African) and National Human rights laws, all of which provide for it as a positive right that can only be limited under the condition prescribed by law. This kind of guarantee and protection is provided for under Article 3 of the Universal Declaration of Human 'Rights (UDHR) of 1948, Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR) of 1976, and Article 6 of the African Charter on Human and Peoples' Rights (ACHPR) of 1981, all three instruments that have been signed and ratified by Uganda thus, binding itself with their provisions. The provision in the ICCPR for example, states that "everyone has the right to liberty and security of person" and that "no one shall be subjected to arbitrary arrest or detention". It also adds that "no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as established by law".

# In *Makomberedze vs Minister ofstate (security) [1987] LRC (Const)*

*504,* per Ebrahim. J. The right ofthe individual to liberty was described by the High Court of Zimbabwe as one of the Pillars of freedom in a democratic society . The Constitution of Uganda of 1995 under Article 23 (4) (a) and (b) also similarly protects and guarantees the right to personal liberty as a positive right to be enjoyed by everybody. Article 23 (4) (b) of the Constitution requires that anyone arrested and/or detained on suspicion of having committed or about to commit an .offence under the laws of Uganda must, if not earlier released, be brought to court as soon as possible but in any case, not later than forty-eight (48) hours from the time of his or her arrest. The same •requirement is also specifically and explicitly provided for under Section 25 (1) of the Police Act Cap 303, which is an Act governing the Uganda Police Force.

Specifically, **Article 23 (1) (c)** provides that a person's right to personal liberty can be deprived for purpose of bringing that person before a court in execution of the order of a court *or* upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda. In *Wintwerp V The Netherlands (1979 - 80) 2 HRR 387* it was stated that no one may be deprived of his or her liberty save in a limited number of circumstances which must be in accordance with a procedure prescribed by law.

The Constitution prescribes the circumstances in which it may be derogated from. It is a positive right whose denial or removal or interference must be justified. And any justification for an interference

with the right must be within the exceptions outlined under the Article. The meaning is that any deprivation of personal liberty outside these prescribed cases results in a violation of the right to personal liberty. Article 23 (2), (4) and (5) prescribe procedural guarantees for the right violation of which also constitutes a violation of the right to personal liberty. In addition, the Article prescribes in detail how a person arrested or detained should be dealt with. These procedural requirements must be respected and complied with as they are important guarantees for the right to liberty. Specifically Article 23(4) (b) is to the effect that;

' "A person arrested or detained upon reasonable suspicion of his or her having committed a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to court as soon as possible but in any case not later than 48 hours from the time of his or her arrest".

According to **Richard Clayton & Hugh Tomlinson:** The Law of Human Rights, Volume 1 at pg. 455

*'The Tort of false imprisonment is committed by someone who intentionally subjects another to total restraints of movement either by actively causing his confinement or preventing him from exercising his privileges of leaving the place where he is. Any interference with liberty is unlawful unless the person responsiblefor the imprisonment can show that it isjustified'*

Thus in the absence of adequate facts or information supporting the ibasis for reasonable suspicion, detention will be unjustified.

In the case of *Erau Stephen vs Oryem D/SP& Ors UHRC No. 397/1999,* the complainant was detained partly for two days at a military police barracks on suspicion that he was a deserter of the army. On the question as to whether it amounted to unlawful detention as to violate the complainant's rights to personal liberty, Commissioner J. M Aliro Omara held that Erau was lawfully detained in the barracks.

He, however, added that his detention would have been unlawful had he been detained for more than 48 hours.

It therefore follows from the above that detention for whatever reason should not exceed 48 hours before producing such a person before courts of law or releasing that person.

Therefore the question to answer is does the evidence before the Tribunal support the case that the Complainant's personal liberty was violated?

First and foremost in considering whether a person's personal liberty has been violated several questions are pertinent. Answers should be sought to questions like:-

(a) Whether the person in question was actually arrested or detained

(b) Whether upon the arrest or detention the procedural requirements under Article 23 were complied with and

■The **Complainant Ntambi Manisuru** testified that he was arrested on /.30th January 2012 and released on 1st February 2012 from Fort portal Police Station (CPS). That he was then admitted at Muhooti barracks hospital for three days and then taken to Boma police cells. That he ' was given police bond on 7th February 2012. The release on bond dated 7th February 2012 was tendered in as evidence and marked Exhibit 1. It reveals that the Complainant was being charged with the offence of robbery vide CRB no. 172/12 and was to appear at Fort portal CPS on 14th February, 2012.

The lock up register though it was never tendered in at Tribunal for consideration, it reveals that the complainant was booked in on 7th February 2012 vide serial no.80/12 on charges of robbery vide SD 34/27/1/012 and released on the same day on police bond. I will evoke Rule 21 (4) of The Constitution (Uganda Human Rights Commission)

(Procedure) Rules 1998, which empowers the Commission, and the Tribunal therefore, to use "its discretion" to "call such additional evidence as it considers necessary" in order to assist it establish the truth on a given issue of contention so as to deliver justice fairly. There is need to establish the truth regarding the Complainant's allegations that his right to personal liberty was violated. This has not been established as the documentary evidence reveals that he was not even detained for 48 hours. According to the case of *Orhena Aduqu and another Vs. Mrs. Ngunan Addingi and Another SCCA No. 193/2012,* it was established that documentary evidence is used to test the veracity of evidence whether given orally or by disposition. The question as to whether the Complainant was actually arrested and detained beyond 48hours as permitted under the Constitution of ■Uganda, 1995 is answered in the negative.

#### **Issue No. 4:**

## **Whether the Attorney General (Respondent) is liable for the violations**

. The principle of law is that once the actions or omissions of the servant have been proved to have been part of the process of the servant's duty for which he was employed, then they render the master liable, even though the same actions or omissions were carried out contrary to the orders or instructions of the master, and even if the servant acted deliberately, wantonly, criminally, negligently, or contrary to the specific instructions or orders of the master, or for his or her own benefit, gain or advantage; as long as what the servant carried out or 'did was merely a manner of carrying out or doing what that servant .'was or is employed to do or to carry out (see *Muwonge vs Attorney General (1967), (EA) 17; also Jones Vs Boots Co. Ltd (1997) ALL ER 40B; and Komakech Patrick through his next Friend Sabino Kidega And Opio Walter through his next Friend Dominic Atare* **Vs** *Attorney General)*

It is established that the state agents (police and army officers) while carrying out their duties did arrest and beat the complaint up in order to force him to reveal the whereabouts of a gun. They committed this violation in the course of their employment hence rendering the Attorney General vicariously liable.

Having answered issue one in the affirmative. I accordingly find that the respondent (Attorney General) is liable for violation of the complainant's right to freedom from torture or cruel, inhuman and degrading treatment or punishment.

**Issue No. 5:**

### **Whether the Complainant is entitled to any remedies.**

Having resolved issues 1, and 4 in the affirmative, the complainant is entitled to a remedy in this case.

Article 9(5) of the ICCPR provides that:

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

And, under Article 53(2) (b and c), of the Constitution of Uganda, 1995 it is provided that:

The Commission may, if satisfied that there has been an infringement on a human right or freedom, orderpayment of compensation; or any other legal remedy or redress.

Having found that the complainant's right to freedom from torture was violated and therefore is deserving of compensation, which includes damages. There are considerations that determine the quantum of such damages. *Commissioner Joseph A. A Etima in Chandia Paul and Attorney General UHRC/FPT/037/2006* held that in assessing the amount of damages which a complainant should be awarded as a result of the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment the following factors have to be taken into consideration; - that freedom from torture, 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 torturer or cruelty **(see also** *James Okello & Cissy Okello vs Attorney General UHRC/JJA/049/2003; Zirimu Johnson and Attorney General UHRC/344/2004).*

The principle governing the assessment of damages is that the injured party should be awarded such a sum of money as will put that party in the same position as the party would have been in if the party had not sustained the injuries see: **Robert Coussens Vs. Attorney General: SCCA No.8 of 1999; Businge David and Attorney General &Asiimwe Yasin UHRC/FP/13/2006.**

Accordingly, having found the Respondent liable for the violation of the Complainant's aforementioned right on a balance of probabilities, I deem a figure of Ug.shs.5,000,0000/=( Uganda shillings five million) adequate compensation.

I so order.

#### **ORDER**

- 1. The complaint is partly allowed. - 2. The Respondent is ordered to pay the Complainant Ntambi Manisur a sum of **Ug. Shs 5, 000,000/= (Uganda Shillings Five Million)** as general damages for the violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment. - 3. Each party to meet their own costs.

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 of this Tribunal.

**ft. Dated at Fort portal this ......day of 2022.**

# **SHIFRAH LUKWAGO PRESIDING COMMISSIONER**