Ochodoi v Attorney General (Complaint UHRC/SRT/139/2007) [2007] UGHRC 1 (14 November 2007)

Full Case Text

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## **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT SOROTI COMPLAINT UHRC/SRT/139/2007**

**OCHODOI PAUL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::COMPLAINANT**

## **-AND-**

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

### **[BEFORE HON. COMMISSIONER MEDDIE B. MULUMBA]**

# **DECISION**

The Complainant brought this complaint against the Respondent seeking compensation for alleged violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment and the right to liberty. He alleged that24th February 2007, while in Otuko village, he was arrested by policemen on allegations of assault and taken to Omodoi Police Post. That he was beaten by two policemen with sticks on his head, hands and the whole body until he became unconscious. That he was handcuffed for four days until he was taken to Katakwi Central Police Station on 28thFebruary 2007 and received treatment at Katakwi Health Centre IV. He was thereafter produced before the Katakwi Grade II Magistrate Court and sentenced to one and a half years imprisonment for assault. That while in prison his condition deteriorated and the doctor after recommended his released on medical grounds.

The Complainant contends that the actions of the policemen were unlawful and amounted to violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment as well as his right to personal liberty for which he seeks compensation from the Respondent.

The Respondent through Counsel Tapacho Juliet denied liability and tasked the Complainant to prove his allegations.

#### **Issues:**

The issues for determination by this tribunal are:

- [i] Whether the Respondent's agents violated the Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment. - [ii] Whether the Complainant is entitled to a remedy.

Before I resolve the above issues I wish to note that though the Respondent did not call any witnesses they filed submissions in defense. The Complainant largely retained the duty to prove his case against the Respondent to the satisfaction of the tribunal. This is in accordance to the provisions of the Evidence Act cap 6 which provide 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 the facts* **ex/sf"/S.101 [1] of the Evidence Act]** and that

*"The burden ofproof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.'[S\Qi2.* **of the Evidence Act [supra];**

I now turn to the issues.

**1. Whether the Respondent's agents violated the Complainant's right to and freedom from torture or cruel, inhuman or degrading treatment or punishment**

The term 'torture' is defined by the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment [UNCAT], 1984 to mean;

*"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 discretion 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 Macmillan English Dictionary for Advanced Learners, New Edition at page 1582 defines 'torture' as -

"extreme physical pain caused by someone or something, especially as a punishment or as a way to make someone say something"; or

"a mentally or physically uncomfortable feeling."

From the definition of 'torture' above, the actions complained of must be deliberate and carry with them an aspect of intent and ill will or malice with the purpose of procuring compliance of some sort.

Torture is outlawed by Article 24 of the Constitution of the Republic of Uganda. Torture is further outlawed by various International and regional human rights instruments to which Uganda is signatory (See Articles 4 and 5 of the African Charter on Human and Peoples Rights [ACHPR], and Article 7 of the International Covenant on Civil and Political Rights [ICCPR],

It was also emphasized in **ATTORNEY GENERAL VS SALVATORI ABUKI CONSTITUTIONAL APPEAL NO.1/1998** that freedoms enshrined under Article 44of the Constitution are non derogable which include freedom from torture, cruel, inhuman and degrading treatment or punishment.

Commissioner Aliro Omara in his decision in the case of **FRED TUMURAMYE VS.** GERALD BWETE AND OTHERS, UHRC/264/1999referring to the UNCAT definition of torture identified the elements of torture to include

- 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 for any reason based on discrimination. - c] The act is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity..

These are the elements which the Complainant must prove to satisfy the Tribunal that he was tortured.

The Complainant **Ochodoi Paul [CW1]** testified that on 24th February 2007, while at Otuko village, he was arrested by policemen on allegations of assault and taken to Omodoi Police Post. He further stated;

*"/ did not make any statement but 1 was beaten with sticks my head, hands and the whole body until / became unconscious. It was two policemen who beat me for a period I do not recall since had collapsed. I was inside the office where they beat me. I was handcuffed for four days until I was taken to Katakwi Central Police Station. The police did not allow anyone to bring food for me. On 28h February 2007, I was taken to*

*Katakwi Police Station. The DPC saw my situation and I was taken to Katakwi Health Centre IV for treatment. While in prison my condition did not improve, I was always falling sick and was taken back to hospital. The Doctor examined me and advised that I take rest and feed properly. He recommended that I be released on medical grounds and nothing that followed but my health is still bad".*

Upon cross examination, **CW1** stated that he was beaten by the Presidential Protection Unit [PPU] who were in uniform at the police. He was kicked while in the Omodoi Police Cell; they used a stick and wire to beat him. He spent four days in detention while on handcuffs and he was not allowed to eat until the 3rd day when his Aunt brought food.

In corroboration further is the testimony of **CW2 Ongala Emmanuela** medical officer working with Katakwi General, Hospital. He interpreted the certified medical examination report dated 28th / 2 / 2007, marked [R.14-15] and authored by the enrolled nurse named Mr. Okiror who passed away and also later examined the Complainant. Tribunal admitted these documents as **Complainant Exhibit 1.** He stated that according to the report the complainant was assaulted and sustained the following injuries.

- Cut right scalp measuring 2\*11/2 inch. - Bruised forehead-out layer of the skin. - Several stick marks on the back. - Punctured wound on the left arm. A sharp instrument was used which left the punched wound. It's what qualifies it to be a punctured wound. - Internal injury on the right thumb. There was accumulation of blood inside.

He concluded the report by stating that the injury was soft tissue injury caused by assault. He further stated that he received treatment of PPF for five days, Injection for tetanus. He further stated that the wounds were dressed on 16th March 2007 and the Complainant suffered from dizziness. He further explained that the report indicated that the complication could have been due to the cut wound. The report concluded and classified the injuries as harm which were caused by a blunt object/stick. The patient was a prisoner by this time and it was recommended that he be released on medical grounds since he needed intensive care.

During cross examination CW2 clarified that the injuries were classified as harm. He stated that this would cause permanent injury or not permanent although there was injury, this can be reversed. He testified that though it's different from life threatening, there was severe damage. Once asked whether one can recover from such injuries, he answered in the affirmative and that it could result into complications. When he examined the patient, noted that;

*" When I assessed the patient, he did not seem to have fully recovered. He may have sustained serious head injury".*

He also added that the complainant continued getting treatment after the police medical examination. That on 23rdMarch, 2007 he was seen at St Paul's Clinic in Toroma complaining of headache, dizziness and imbalance. He testified further that when he examined him, his blood pressure was high.

On further cross examination of whether the patient fully recovered, CW2 stated that; *" The report indicated so but the complainant has not fully recovered'*

The Respondent however contended that the medical evidence adduced by the Complainant did not show that the Complainant was tortured in order to obtain a confession from him. That the evidence did not indicate whether the Complainant suffered severe pain and therefore they therefore contended that the Respondent is not vicariously liable. However 1 will Point out that as a tenate of law has it, in the event of such allegations being made by a Complainant against the police that he sustained severe injuries while in custody, the police must provide an explanation regarding the cause of the injuries sustained. This principle was upheld in the case of **AKSOY VS TURKEY, [1195] [1996] ECHR, 68 [18 December 1996]** in which the European Court gave a holding that where an individual is taken in custody in good health but is found injured on release, it is incumbent on the detaining authority to provide a plausible explanation as to the cause of injury. 1 therefore hold that the medical evidence on file in proof of torture injuries is sufficient.

**CW3 Okoi Lazaro** testified that it was on 24th February 2007 while he was in detention at Omodoi Police Post, the military police [Red tops] were brought into the post. He stated as further that;

*''Ochodoi was brought by police and he was handed over to the Red tops. They picked a stick and hit him on the head and beat him badly all over the body until he collapsed. He was brought to the cells while still unconscious and bleeding. When he gained consciousness, he had handcuffs and was smelling blood.... when the redtops went away I called a woman by the names of lyeset to bring salt, which I poured on Ochodoi's wound. After four days a police 999 came to take Ochodoi to Katatkwi Hospital for treatment. Ochodoi was admitted for about two months in hospital. And when they got him out and brought him to Katatkwi Grade Magistrate's Court, they released him without any charge since his condition was bad. He continued with treatment at Toroma Health Centre IV".*

On cross examination, CW3 stated that he knew Ochodoi Paul since they come from the same Sub County. He further stated that the Complainant was beaten until he collapsed since he was in the cells. He stated that he watched through the windows and Ochodoi was carried to the cells when he collapsed and this was at 8:00a.m. He further stated that the military police wearing red caps beat the Complainant and that they were many in number. That they used sticks and also kicked him. He mentioned that Ochodoi sustained injuries on the back and the head. That he asked his relatives to bring food and salt which he applies on the wounds. That the Complainant did not eat for two days since he was too weak to eat.

**CW4, Olupot Aloysius** testified that though he did not see the Complainant being arrested and beaten, he was informed that Ochodoi had been arrested due to the misunderstanding he had with his sisters. He went to Omodoi Police Post; he was told that Ochodoi had been badly beaten with no hopes of survival and therefore requested for Ochodoi's body in case he was dead. That at that point they allowed him see Ochodoi.

He added;

*"He had blood all over his body, on the head and other wounds. They had put salty which was brought by Mr. Akori Lazarus. I asked the Police to allow me take him to for treatment but the police refused. The following day it was still the same story; my brother had not got any assistance. He was thereafter taken to hospital and treated then taken to court and convicted for 1 year and 8 months but when the authorities saw his condition, they decided to release hind'.*

Upon cross examination, CW4stated that he checked on the Complainant at the police station and found him beaten and bleeding from the head and the back. That he was not allowed to take him for treatment. The police were right to arrest him but not beat him. He stated that Ochodoi is a farmer; he used to be helpful before as a security guard, paid fees for the children did a lot of agriculture but he could no longer do the same.

In this case, the Respondent did not put up a defense to weaken the Complainant's evidence but only cross examined the Complainant and his witnesses. The Complainant's evidence was therefore left unchallenged.

In the case of **GEORGE ASS1MWE VS ATTORNEY GENERAL HCCS NO.4B1/1997,** the Plaintiff closed his case and the defendant offered no evidence; it was held by P. Magamba J. that the plaintiff's evidence was not controverted and had to be accepted as truth.

I have analyzed the evidence adduced by the Complainant, including all the testimonies given by his witnesses and I find it to be consistent and reliable. According to the evidence, I find that the Complainant was beaten by government security officials for allegedly assaulting a person. As a result of the beating he suffered severe injuries. It is the finding of the tribunal that the ingredients constituting torture have been proved; the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.

The perpetrators were acting in the course of their employment as security officials of government when they beat the Complainant and hence the Respondent is vicariously liable for their actions.

## 2. Whether the complainant is entitled to any remedies

Article 53(2] of the Constitution provides that

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order -

- [a] - [b] payment of compensation; or - [c] any other legal remedy or redress."

Having found that the Complainant's right to freedom from torture was violated, 1 accordingly find that he is entitled to a remedy in the form of compensation.

In assessing the amount of compensation to the Complainant 1 will consider factors like the nature and extent of the torture, the gravity and effect of the torture and the fact that freedom from torture is non-derogable.

According to the testimonies and medical evidence on record, the Complainant suffered immensely. He sustained serious injuries to the extent of being unconscious. The medical expert mentioned that the injuries the Complainant could result into complications. The Complainant's productivity had been reduced and his health deteriorated and yet he was the bread winner for his family. Having taken into consideration the above, I award the Complainant **U. Shs.10, 000, 000= (Ten million Uganda Shillings]** as general damages for the violation of his right to and freedom from torture or cruel, inhuman and degrading treatment or punishment.

I so award.

## **ORDER:**

- (i] The complaint is allowed. - [ii] The Respondents are ordered to pay the Complainant Ochodio Paul a sum of **Ug. Shs. 10,000,000= (Ten million Uganda Shillings]** as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment. - (iii] The **Ug. Shs 10, 000, 000= (Ten Million Uganda Shillings]** will carry interest at court rate from the date hereof 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 hereof.

**MEDDIE B. MULUMBA PRESIDING COMMISSIONER**