Obore Angello v Attorney General (Complaint UHRC 170 of 2007) [2016] UGHRC 11 (29 November 2016)

Full Case Text

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# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA** COMPLAINT NO: UHRC/170/2007

OBORE ANGELLO:::::::::::::::::::::::::::::::::::

#### $-AND-$

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

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

#### **DECISION**

The Complainant brought this complaint against the Respondent seeking compensation for violation of his right to freedom from tortureor cruel, inhuman ordegrading treatment or punishment. He alleged that on the 31st October 2007, he was arrested by officers attached to Kyambogo police post on allegations of theft. That he was detained at the post for one night and was transferred to Rapid

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Response Unit –Kireka, where he was beaten indiscriminately by officers using batons, sticks, pieces of wood and pliers. That as a result of the torture, he suffered injuries on his body resulting intohearing complications.

The Respondent through Mr. Richard Adore denied the allegations.

#### **ISSUES:**

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

- 1. Whether the Complainant's right to freedom from torture or cruel, inhuman ordegrading treatment or punishment was violated. - 2. Whether the Respondent is liable. - 3. Whether there is any remedy due to the Complainant.

I note that this matter was heard before former Commissioner Violet Akurut Adomeand it is from her record of proceedings that I have arrived at this decision.

In determining the above issues, the testimonies of theparties arerelevant.

The Complainant testified before this Tribunal that on 31stOctober 2007, he was arrested from his workplace (Euro foam) then, by three police officersdressed like civilians on allegations that he had stolen mattresses from his employer. That the officers took him to a shop which belonged to his friend, a one Oketcho Samuel to look for the stolen mattresses. That he was then detained at Kyambogo police post for one night and then transferred to Kireka Rapid Response Unit the following day where he was beaten indiscriminately all over his body by four officers using batons, firewood sticks, pliers. That as a result of this beating, he sustained injuries which led to hearing complications. He testified that further that he sought for treatment at Nsambya hospital where he was referred to African Centre for treatment of Torture Victims (ACTV) where he received further treatment.

$\overline{2}$

The complainant's medical report from ACTV was tendered into evidence to prove his claim.

Okecho Samuel, the Complainant's witness (CW1)testified that on the 31st October 2007, he was approached by the three gentlemen who camealong with the Complainant who was crying and demanded to check his shop for stolen mattresses. That the Complainant was pushed to the ground by the three men who threatened him that if he did not produce the mattresses, 'he would face it rough.' That the Complainant's clothes were so dirty and looked as if he had been soaked in mud. That he next saw the Complainant a week later with bruises on his body and the Complainant informed him that he had been tortured.

#### The findings by the Tribunal

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

I shall seek to 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 ordegrading treatment or punishment.

The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 (UN CAT) 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"

The Universal Declaration of Human Rights 1948 states under Article 5 that;

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

Similarly the International Covenant on Civil and Political Rights (ICCPR) 1996 explicitly and totally prohibits torture or cruel, inhuman and degrading treatment or punishment, when it states as follows under Article 7,

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

The African Charter on Human and Peoples Rights (ACHPR), 1981 under Article 5 also totally prohibits the aforementioned infringement by stating that;

"All forms of exploitation and degradation of man, particularly slave trade, torture, cruel, inhuman or degrading treatment or punishment shall be prohibited."

In Uganda, the Constitution of the Republic of Uganda under Article 24 prohibits the violation of an individual's right to freedom from torture, cruel, inhuman and degrading treatment or punishment. This was emphasized in Attorney General Vs Salvatori Abuki Constitutional Appeal No.1/1998 that the freedoms enshrined under Article 44 (a) of the constitution are non derogable which include freedom from torture, cruel, inhuman and degrading treatment or punishment.

Accordingly, the actions committed against the complainant would constitute "torture" if the same were proved as such. As I determine the issue under my consideration, I shall take into account the definition of torture as provided under

Article 1 of the UN CAT that I have already cited. I shall thereafter evaluate the evidence adduced with a view of determining whether the treatment that is alleged to have been meted out on to the Complainant by the state agents amounted to the level of severity that constitutes what would be categorized as torture within the meaning of the definition of torture provided under Article 1 of the UIN CAT. If not, then I shall determine whether the effects of the same actions amount to what is categorized as only cruel, inhuman or degrading treatment or punishment. In this respect therefore, I shall evaluate the evidence to determine whether the four important ingredients and contours that are identifiable in the UN CAT definition and the current international concept of torture are proved by the evidence adduced.

The four ingredients and contours are;

- a) Whether the action has caused the victim severe pain or suffering, whether physical or mental - b) Whether such pain and suffering was intentionally inflicted on the victim - c) Whether the purpose of the action was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination - d) Whether the actions were inflicted by or at the instigation of, or with the consent or acquiesce of a public official or other person acting in official capacity.

If the above ingredients are proved, then it will have been established that the complainant wassubjected to torture in contravention with the laws of Uganda.

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

I note that the Respondent did not present any evidence to rebut that of the complainant, neither did he makeany submissions in defence of the matter. Nonetheless, the burden of proof lies upon the person asserting that his rights or her rights have been violated, in this case, the Complainant to prove the allegations to the satisfaction of the tribunal. This is in line with section 101 of the Evidence **Act Cap 6**which states that;

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist".

Further, under S.102 of the Evidence Act:

"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".

According to the Complainant's testimony, he stated that on 31st October 2007, he was arrested from his workplace (Euro foam) by three police officersand detained at Kyambogo police post for one night on allegations of theft. That he was transferred to Kireka Rapid Response Unit thefollowing day where he was he was beaten indiscriminately all over his body by four officers using batons, firewood sticks, pliers. That as a result of this beating, he sustained injuries which led to hearing complications. That he sought for treatment at Nsambya hospital where he was referred to African Centre for treatment of Torture Victims (ACTV) where he received further treatment.

The Complainant in referring to the beatings, he stated that;

"...all of them beat me at the same time all over the body for about 15 minutes and until I made an alarm, I felt a lot of pain all aver my body that I could barely move. I bled too much from the nose. I was also slapped on both sides of my ears ..."

His evidence of arrest was corroborated by CW1whotestifiedthat on the 31st October 2007, he was approached by the Complainant as accompanied by three men who checked his shop for stolen mattresses. That the men pushed the Complainant to the ground where he fell as they threatenedhim and demanded from him mattresses.

The complainant also tendered in documentary evidence in form of an investigation report by the Commission which is the official record of the information that was obtained by Commission Investigation officials before the matter merited to come to the Tribunal; and from which record normally relevant documentary evidence is picked to be tendered in as the Complainant's exhibits. This report indicated that the Complainant was booked in at Kyambogo police post under SD/Ref/26/10/07 and booked out on 3rd November 2007. The report also indicated that the complainant was indeed detained at RRU Kireka on $1^{st}$ November 2007 under SD 26/31/10/07 and booked out on 3rd November 2007 and transferred back to Kyambogo police post where he was released from.

Dr. Kyazze David, the Complainant's expert witnesstestified thatthe Complainant was seen by his colleague Dr. Twebazeat Africa Centre for Treatment and Rehabilitation of Torture Victims (ACTV). He authored the medical report that revealed that the Complainant first received treatment on the 4th November 2007 wherein he exhibited abrasions on the skin that was likely to be caused by a blunt instrument and he complained of pain in the ears. The injuries were classified as "GRIEVIOUS HARM" although not expected to cause any permanent damage.

Upon cross examination, the Respondent Counsel sought tochallenge the truthfulness of the Complainant's evidence and of his witness; first, he challenged the complainant's testimony in connection with the dates of detention and release on bond. The Complainant first informed the Tribunal that he was he arrested on the 30th October 2007 and upon cross examination he stated that he was arrested on the 26th October 2007 and released on 31st October 2007, and when the Commission Counsel re-examined him,he stated that he was confused as to the exact date when he was arrested since the case had taken long.

I have scrutinized the Investigations report which was admitted in evidence as EX.2 and found that when the Commission investigators visited RRU Kireka and viewed their records, they established that theComplainant was booked at RRU under SD/26/31/10/07 of Kyambogo and was booked outon the 3rd November 2007, transferred back to Kyambogo for release. I have compared this report with the Complainant's statement of complaint dated 05/11/2007 in which he stated that he was arrested by police attached to Kyambogo Police Post, detained at the post for one night and then transferred to Kireka RRU where he was detained for two days; during which detention he was severely beaten.

In light of the above evidence, the discrepancy in the Complainant's evidence in relation to the dates of arrest and detention is very minor and does not point to his untruthfulness. There is evidence to prove that the Complainant was arrested by Police officers attached to Kyambogo Police post vide SD/26/31/10/07, received at RRU on 1/11/2007 and he left RRU-Kireka on 3/11/2007 en-route Kyambogo Police Post for release. I find that the Complainant could not have forgotten these dates when he stated them to the Commission while lodging the complaint on $5/11/2007$ , just two days after his release from Police custody.

Secondly, theRespondent Counsel challenged the Complainant's evidence as to the identity of the men who arrested him. Counsel for the Respondent went on to ask the complainant thus; 'in your statement, you said that you were arrested by 3 policemen in civilian clothes, how you know that they were policemen?' The Complainant reiterated that the men who arrested him detained him at Kyambogo Police post where he recorded a statement before them and in the presence of other uniformed officers. He further testified before arresting him, the officers identified themselves and that one of the officers even presented his identity card identifying himself as police attached to Kyambogo police post.

From this response, I'm convincedthat theComplainant was arrested by police officers attached to Kyambogo police post. The officers identified themselves before the Complainant and after the arrest, the took him to the post and detained him.

The Respondent Counsel went further and challenged the Complainant's evidence in which he claimed that he was transferred from Kyambogo Police post to Kireka Rapid Response Unit where he was tortured by officers who were also dressed civilian clothes and Respondent's Counsel sought to insinuate that the Complainant was not tortured at a police station but at a safe house. Infact he challenged the Complainant and asked the complainant whether he could differentiate between a safe house and police station.

I note that the Respondent did notchallenge or present any evidence to rebut the fact in issue that the Complainant was tortured; he only challenged the place of the torture. I'm convinced that according to the Investigations report, the Complainant was at RRU Kireka from 1st to 3rd November 2007. Therefore, by the Respondent not providing any evidence to the contrary, it leaves me to believe the Complainant's story that he was tortured while in detention at RRU Kireka.

It is also a tenet of law that in the event of such allegations of torture being made by a complainant against the police, then the police in whose custody the complainant was detained must provide an explanation regarding the cause of the injuries sustained by the complainant while in their custody. This principle was upheld in the case of Aksoy Vs. Turkey, [1996] ECHR 68, in which the European Court of human rights gave judgment holding that where an individual is taken into police custody in good health but found to be injured on release, it is incumbent on State to provide plausible explanation which the Respondent failed to do.

In light of the above evidence presented before this tribunal, it is evident that the Complainant was arrested on the 31st October 2007 on allegation of theft of matresses, detained at Kyambogo police post for a night, transferred to RRU -Kireka on 1st November and he was released on the 3rd November 2007. During his detention at RRU Kireka, he was subjected to beatings by officers using batons, sticks and wires that caused him injuries from which he sought medical treatment from ACTV on 4/11/2007. This evidence is corroborated by that of the expert witness CW2 whotestified that this the Complainant first received treatment from ACTV on the 4th November 2007 wherein he exhibited abrasions on the skin that were likely to be caused by a blunt instrument and that the complainant complained of pain in the ears. The injuries were classified as "GRIEVIOUS **HARM**" although not expected to cause any permanent damage.

The Complainant has proved that he sustained injuries under the custody of the police of Kyambogo police post and RRU Kireka which the police failed to give a plausible explanation.

The evidence above suggests that the Complainant's right to freedom torture or cruel, inhuman or degrading treatment or punishment was violated, contrary to Article 24 of the Constitution and the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I therefore answer this issue in the affirmative.

## Issue 2: Whether the respondent (Attorney General) is liable for the violations against the Complainant's rights

Asresolved in the above issues, there was a violation of the Complainant's right to freedomtorture or cruel, inhuman or degrading treatment or punishment contrary to Articles 24 of the 1995 constitution of Uganda.

According to Article 119(4) (c) of the Constitution and section $10$ of the Governmentproceedings Act, the role of the Attorney General is to represent Government in any civil proceedings to which Government is party and this is what is called Vicarious Liability.

In relation to the law on vicarious liability it is clear that, it is however immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable as stated in *Muwonge Vs. A. G (1967) EA 17*. It is thus irrelevant whether the acts done by the police officers were unjustified or unauthorized as long as they did such acts in the course of their employment their

Similarly in the case of Jones Vs. Tower Boots Co. Ltd 1997 ALLER 40 B the court held that an act is within the course of employment if it 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

In the instant case, the Complainant was arrested by the police officers from Kyambogo police post, detained at Kyambogo police post and RRU Kireka; during which detention, he was subjected to severe beatings that left him with severe injuries. These police officers both individually and severally worked on behalf of the state which is their master hence it was proper for Attorney General to represent Government in this matter for the police officers.

Therefore the Attorney General in this matter is vicariously liable for the violations of the Complainant's right to freedom from torture by the police officers from Kyambogo Police Post and RRU-Kireka who individually and severally were at the time serving their master and employer the state.

## Issue No.3:- Whether Obore Angello is entitled to any remedy

The answer to this issue is yes.

A complainant whose human rights are violated is entitled to a remedy. Under Article 53 (2) of the Constitution, 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.

In this complaint it has been proved to the satisfaction of the Tribunal that Obore's right was violated and hence he is entitled to a remedy in form of compensationAccordingly the only question left is what remedy or quantum of damages he is entitled to. The evidence before this Tribunal shows that the complainant subjected to physical and mental suffering at the hands of state agents in which he sustained severe injuries as evidenced by the documentary and oral evidence presented by the expert witness.

In my considered opinion, Iaward the Complainant Ug. Shs.5,000,000= (five million Uganda shillings) for the torture he underwent.

## **ORDER**

- (1) The Complaint is allowed. - (2) The Respondent pays the Complainant a sum of Ug.shs.5, 000,000= (Fivemillion shillings) as compensation for the violation of his right to freedom from torture. - (3) The above sum shall attract interest at Court rate from the date of this decision till 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.

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

Malm

**MEDDIEB. MULUMBA.** PRESIDING COMMISSIONER