Ochwo Patrick v Attorney General (Complaint UHRC 79 of 2009) [2018] UGHRC 18 (11 February 2018)

Full Case Text

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# THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

# **HOLDEN AT KAMPALA**

### COMPLAINAT NO: UHRC/79/2009

OCHWO PATRICK ::::::::::::::::::::::::::::::::::::

and

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

# BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA

### **DECISION**

The Complainant (C), Ochwo Patrick alleged that on 6th June 2009, at around 2.30 a.m., a group of people including the Local Council One (LC1) Chairman of Katalemwa village came to his house and arrested him on the allegation of theft. That he was taken to Matugga Police Station where he was detained alongside two other suspects. He alleged further that the next day, after recording a statement, he was paraded together with the other suspects in front of the Police Station,

with the intention of being photographed with the alleged exhibits. That he refused to be photographed and as a result, the policemen started beating him all over the body. That they also kicked him with their boots and tied his hands with ropes behind his back '*Kandoya*' style. He alleged further that the afore-descried assault left him covered in wounds, bruises and other severe injuries. That he also had difficulty in breathing and was forced to accept that he was a thief.

C therefore prayed to the Tribunal to order for compensation to him by the Respondent (R) for the alleged violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

R through their representative Counsel (RC), Ms. Arinaitwe Gorreti denied liability and opted for putting up a defence in this matter.

### **ISSUES:**

The **issues** to be resolved by the Tribunal are:

- 1. Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether $R$ is liable for the violation. - 3. Whether $C$ is entitled to any remedy.

Let me begin by pointing out that from the record of the proceedings on this matter, R neither called any defense witnesses nor filed any written submissions in this matter. RC was only able to cross-examine C and his two witnesses. In spite of this however, C still retained the duty of proving his case against R to the satisfaction of the Tribunal in accordance with Section 101 (1) of the Evidence Act Cap 6, which requires "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" to indeed "prove that the facts exist"; as well as Section 102 of the same Act which

also states 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".

## **RESOLUTION OF ISSUES:**

# Issue 1: Whether C's right of freedom from cruel, inhuman or degrading treatment or punishment was violated by State agents.

C testified that between 1:00 a.m and 2:00 a.m on the 7th June, 2009, he was awakened up by the LC1 Chairman of Katalemwa village called Kawoya, who came together with other people. That the LC 1 Chairman informed him that they had caught a man stealing cassava, who had mentioned that he knew him (C). That he came out of the house and was taken together with Kato, Kimera and other people by the Chairman to Matugga Police Station. That at Matugga Police Station, he was put in a cell together with the person suspected to have stolen cassava, where they spent the night. That he did not know the name of the person he was detained with, and he had never seen him before.

C testified further that the following day, they were brought out of the cell at about 8.00 a.m. and asked to squat next to a bag of cassava in order for a police officer to take a photograph of them together with the bag of cassava. That he refused to do so saying that he was not arrested for stealing cassava and at that time, his brother Okoth Godfrey and his wife Najjingo Jida arrived. That the OC of Matugga Police Station called Bob ordered the police officers to bring ropes to tie him. That his hands were tied by six officers all wearing police uniform, who also beat, kicked, boxed and slapped him. That one of them boxed him on the neck near the right ear. That he was assaulted like this all over his body for about thirty minutes.

C added that he was taken to court at Matugga at about 2.00 p.m on 8th June, 2009, where he was charged for stealing cassava but due to his condition, he was released on bail after he had paid first, UGX $100,000/$ = (one hundred thousand shillings) and then another UGX $200,000/$ = (two hundred thousand shillings)

thus, totaling to three hundred thousand shillings (UGX 300,000/ $=$ ) but he was not given any bail bond document.

C testified further that after his release, him and his brother Okoth reported to Kawempe Police Station a case of assault and when he followed up on this case later on, he was told that the OC Matuga Police Station had already been punished for it. That after sometime, he lodged a complaint with Uganda Human Rights Commission from where he was sent to the African Center for Treatment and Rehabilitation of Torture Victim (ACTV). That he received treatment from ACTV on 18th June, 2009 for the swelling on the neck area below the right ear, as well as the wounds on his arms and other parts of his body, adding that he continued getting treatment on various visits until he recovered.

The Tribunal notes the two receipts dated 8th June, 2009 for the money C had paid for bail in the criminal case, one of them indicating the first partial payment of Sh.100,000=, and the second one indicating the next payment of Shs.200,000=.

During cross-examination, C reiterated that he was arrested on a Thursday. He also confessed that he did not know that it was an offence to resist the instructions given by police officers during arrest. He added that he had no grudge with the LC1 Chairman, adding that the residents never attempted to beat him on suspicion of theft as had been alleged. He also confirmed that before the incident under consideration now, he had been arrested on charges of theft but he could not recall the year when that earlier arrest had taken place.

C reiterated further that he was released on bail and after release, he sought medical treatment from a clinic within the village but he could not recall its name and he was not given any document from there. That on 18th June, 2009 he was referred to ACTV as he was not feeling well, adding that even after he had received treatment from the said clinic and ACTV, he still had wounds on the wrists, arms, the right lower neck and the back. He added that after treatment at ACTV, he

visited other health centers like Mulungi Clinic where he still complained of chest pain but by the time he testified, it was one-and-a half $(1 \frac{1}{2})$ years since he had last sought for any treatment. That after he was released on bail, he reported to court for like 8 to 10 times before the case against his was dismissed by the Magistrate since there were no witnesses to testify against him.

However, during re-examination, C clarified that he was not certain whether the day when he was arrested was Thursday or not.

C's first and also Medical Expert witness (CW1), Dr. Paul Muwa testified that he worked at ACTV and Comprehensive Rehabilitation Services of Uganda (CORSU) Hospital, and that he held a Bachelor's Degree in Medicine and Surgery from Mbarara University, obtained in 2001. He added that as a medical doctor, he used to examine patients, investigate their conditions, provide appropriate treatment, refer patients who needed specialized treatment and also write medical reports for patients where this was necessary.

He recognized the medical report from ACTV for Mr. Ochwo Patrick, saying that Ochwo had gone to ACTV on 18th June, 2009 complaining of pain in the chest, shoulders and ankles, and that the complaints followed his submission that he had been beaten by police officers. That on examination, he had found several dark coloured scars on C's arms and the left forearm. That C also had dark coloured scars near his left nipple, which extended towards his back, and other scars on both sides of his ankles. He added that C was also found with tenderness or pain on the left side of his chest.

CW1 testified further that from the examination and investigations he did, he had established that C had suffered from soft tissue injuries and in conclusion, his physical signs and symptoms had a high degree of support consistent with the allegations of torture. That $C$ was therefore given the appropriate treatment which included medicine and physiotherapy. The Doctor also confirmed that the

document he interpreted for the Tribunal had been signed by himself under his names of Dr. Muwa Paul, and dated 24th July, 2009.

The certified medical report from ACTV that was interpreted by Dr. Paul Muwa was admitted as C's first exhibit (CX1).

During cross-examination, CW1 clarified that C was examined on 18th June, 2009, and the report was signed on 24th June, 2009 because usually, a medical report would be written at any stage of treatment, or after treatment. That he signed C's report at the end of the treatment, adding that C was not admitted but treated as an out-patient, whose treatment started on 18th and ended on 24th June, 2009 after he had improved. CW1 also clarified that on discharge, patients would always be free to visit ACTV again in case they had any problem but he could not recall whether C went back or not, since he (CW1) attend to several other patients. He also clarified that in his own view, the treatment that was given to C was not necessarily sufficient since he had administered pain killers and physiotherapy only.

CW1 added that before he carried out examinations he had noticed that $C$ was in pain from the way he was walking and talking, and also had scars distributed on the arms and his left forearm from the elbows to the wrist. That the chest and both ankles also had scars which were recent and probably not more than six months old, although it was hard to distinguish them within a narrow time frame since the dark coloured superficial scars usually disappear within a year. However, he strongly felt that the scars looked to be less than a year old because they were dark and superficial. That the scars were on the top layer of the skin and not deep in the flesh. He also stated that there was no treatment for scars. He clarified further that the wounds had completely healed by the time of examination and therefore, the treatment given to C was for the pain and not for the wounds. He added that he had diagnosed chest pain which he related to kicks, although pain from the kicks could not be differentiated from the chest pain

caused by diseases like Respiratory Tract Infection, Bronchitis and Pneumonia. He however, stressed that some chest pains could occur as a result of injuries caused by blunt or sharp objects or projectiles, adding that when the pain is intense one could tell because it would affect the victim's breathing and speaking, as shallow breathing normally indicates that the pain is intense.

During re-examination, CW1 pointed out that although C's injuries were not life threatening, they could still cause permanent disability as a result of getting arthritis which could result into the patient using painkillers daily. That this would affect the patient's ability to be productive, especially in case manual work He also stressed that this condition would limit his would be involved. movements. He concluded by classifying C's injuries as "harm".

CW2, Okoth Godfrey testified that on 27th June, 2009 at around 2.30 a.m. as he was at his home in Kibuli, he was called by his brother Patrick Ochwo (C) who informed him that he had been arrested by a group of people who were taking him to Matugga Police Station. That the following day at about 7.00 a.m, he went to Matugga Police Station and C was called out of the cell immediately. That the policemen then brought cassava in a sack and OC Bob told C to sit near the same sack of cassava, so that a certain police officer could take a photo of him next to the sack of cassava. That C refused to do so and the OC then mobilized about seven police officers whom he ordered to bring ropes to tie C. That the police officers tied C's hands and also kicked and boxed him in order to force him to sit next to the sack of cassava. That they kicked and boxed him in the chest, in the ribs and on other parts of his body. That as a result of all this, C sustained wounds on the back, elbows, chest, legs, hands and shoulders, and he also started bleeding.

CW2 added that C was later taken to court which was near the Police Station. from where he was given bail. That after C's release, the two of them went to Kawempe Police Station to lodge a complaint against the OC of Matuga Police

Station, and that later on he learnt that the latter had been stopped from working. That C then lodged a complaint with UHRC from where he was referred to ACTV in Kamwokya for treatment until he was discharged.

During cross-examination, CW2 reiterated that C was his brother and he was a carpenter before the incident of assault but he had stopped working as a result of the effects of that assult. That he went to Matugga Police Station at around 7.00 a.m but he was not able to talk to him, adding that they went to Matugga court on that same day, 8th June 2009 when C was granted bail, and their sister Florence is the one who stood surety for him. That C was beaten for refusing to pose for a photograph while squatting next to the sack of cassava. CW2 added that he was able to see all this because he was standing in the compound of the Police Station. He clarified further that C was in good health before the scuffle of tying him with ropes and beating him. He however conceded that if C had not refused to be photographed, he might not have been beaten. He also clarified that they used a vehicle to go to Kawempe Police Station to lodge a complaint.

During re-examination, CW2 stressed that C was beaten when he refused to be photographed while squatting next to the sack of cassava, adding that the police took him to court accusing him of having stolen cassava.

CW3, Naggingo Gida testified that C was her husband and on 7th June, 2009 at about 2.00 am., as they were sleeping, the Chairman LC1, Kawoya went to their home and called them out. That when they opened the door the Chairman told her husband to get out because he had stolen cassava. That the Chairman together with the people who came with him, then tied C with ropes and took him to Matugga Police Station. That she went to the Police Station in the morning at around 9.00 a.m. and the OC of Matugga Police Station called Bob told C to come out of the cell so that his photograph could be taken while squatting next to the

sack of the cassava he had allegedly stolen. She added that since C had not stolen the cassava, he refused to be photographed. That the OC ordered the police officers to tie him with ropes and after he had been tied up, they started beating, kicking and dragging him on his knees. That he was beaten for about three hours and she was present together with her brother-in-law and sister-inlaw when all this was being done to C. That when C was released, Okoth Godfrey and Nyacho Florence took him to the hospital. That as she was pregnant, she could not go with them. She added that C also went together with Okoth Godfrey to Kawempe Police Station and opened up a case. She however clarified that she was just told about this as she did not go with them. That before he was taken to hospital, C had bruises on the knees, since he had been dragged on the ground, and he was also bleeding. She also stressed that although they reported OC Bob for the orders he had given to the police officers who assaulted C, the police officers who received the complaint did not bother and after this C went to UHRC. She concluded saying that C still complained of backache, and he was generally weak.

During cross-examination, CW3 clarified that she could not recall the full names of the LC1 Chairman of Katalemwa, Matugga Zone who came to their home at night, and that she did not identify the people who arrested C. However, she stressed that she knew where C had been taken because the people who arrested him had told her that they were taking him to Matugga Police Station, and she went there in the morning at about 8.00 a.m and found C detained there.

She asserted that she was present at Matuga Police Station and she was able to see and count the police officers who beat C, adding that they were wearing police uniform, navy blue in color. That the beating took about three hours. However, she clarified that all that she said about court, hospital and Kawempe Police Station she was just told by those who went there together with C. She also added that by the time she testified, C was still trying to continue working as a

builder but he was regularly going to hospital because he was having backache. She clarified that C had been treated at Watuba Clinic, and that Mulungi was his doctor.

During re-examination, CW3 confirmed that C was tied by police officers using ropes, and that she witnessed this as well as the beating at Matugga Police Station.

The Universal Declaration of Human Rights (UDHR) of 1948 states under Article 5 that: "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The International Covenant on Civil and Political Rights (ICCPR) of 1996, also under Article 7 prohibits torture or cruel, inhuman and degrading treatment or punishment, stating that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." In addition, the African Charter on Human and Peoples' Rights (ACHPR) of 1981 under Article 5, also reiterates the total prohibition of violation of the same aforementioned right.

At the level of our own country, 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; and under Article 44 the same right is made non-derogable.

As the alleged torture in this complaint is said to have taken place in 2009, the definition of the term "torture" that is appropriately applicable in this case is given under Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). This definition states that torture is:

> any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes

$10$

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, $\alpha$ r 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.

The key ingredients of torture that are identifiable in the aforecited definition and which are important for my resolution of the issue under instant consideration are:

- That the act results into severe suffering or pain, whether physical or mental. - That the act is intentionally inflicted on the victim. - That the act is carried out for the purpose such as obtaining information or a confession, punishment, intimidation or coercion, or for any reason based on discrimination of any kind; and - That the act is carried out by, or with the instigation or the consent or the acquiescence of a public official or any other person acting in official capacity. - I have applied the aforecited definition of torture to the instant case, and established clearly that C was indeed intentionally beaten by six police officers under the orders of OC Bob, and that the beating that was done on C caused severe pain to him as was evidenced by the bruises that he sustained and the pain he experienced, all as were scientifically explained and classified by CW1, In addition, CW2 and CW3 testified as eyethe medical expert witness. witnesses and both of them corroborated C's claim that the Police Officers at Matuga Police Station beat C on the orders of OC Bob, and also confirmed that

$11$

$C$ was indeed beaten as a punishment since he had refused to pose for a photograph squatting next to the sack of cassava that his accusers and the

police claimed he had stolen. The six police officers who beat C and OC Bob who issued the said orders, were all public officials who carried out the said acts while they were on their official duties.

I therefore find on the balance of probabilities, that the aforementioned State agents acting both individually and severally, indeed violated C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

Accordingly, the issue I have been considering is resolved in the affirmative and therefore, C's claim in this regard succeeds.

## Issue 3: Whether R is liable for the violation

Article 119 of the Constitution of Uganda provides for the functions of the Attorney General to include representing Government in Courts or any other legal proceedings to which Government is a party.

In the case of IWINA vs ARUA TOWN COUNCIL (1997) HCB 28, the court that decided the case held as follows:

Once it is proved that the servant was an employee of the master, there is a presumption that he was in the course of employment. The burden then lies on the master to prove the contrary.

It has been established that C was indeed arrested and taken to Matuga Police Station where he was detained and also tortured by police officers on the orders of OC Bob. At the time C was arrested, he was in good health but on his release from detention, he had injuries on different parts of his body. Therefore, the Uganda Police must be answerable for the injuries that C suffered.

I therefore find it necessary to apply in this respect the principle which was upheld in the case of Aksoy vs Turkey, (1995) 21 EA 573, in which the European Court gave judgment holding that: "where an individual is taken into Police custody in good health but is found 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."

As I pointed out earlier, R's side failed to call any defence witnesses and to provide a credible and satisfactory defence throughout the hearing of this matter. RC was only able to cross-examine C and his two witnesses but still, she failed to shake their evidence. The aforementioned CW2 and CW3 categorically pointed out that they were present when C was being beaten and therefore, they testified as eye witnesses who adduced creditable and reliable incriminating evidence.

Accordingly, I feel confident to apply another principle that is upheld in the case of Edeku Vs Attorney General, (1995) X1 KALR 24, which provides that any issues that are argued before court or a tribunal by the plaintiff or complainant, must be deemed to have been admitted where the defendant or respondent fails to adduce any defense evidence in rebuttal.

I therefore find it fitting to hold R (Attorney General) vicariously liable for the violation of C's right that is already proved.

## Issue 3: Whether C is entitled to any remedy

Article 53(2) (b) of the 1995 Constitution of Uganda empowers the Uganda Human Rights Commission, once it gets satisfied that there has been an infringement of a human right or freedom, to order for redress which may include among other forms, payment of compensation.

I now invoke these powers.

Since C has proved to my satisfaction that his aforementioned right was indeed violated by the said State agents, he is therefore entitled to receive compensation from the State by way of damages for the violation of his right.

However, as I assess the amount of money to be order for payment in compensation for the violation of C's aforementioned right, I must take into account the following facts:-

- That the right that was violated is non-derogable. - That the injuries that C suffered were classified as "harm", and they caused him a lot of pain and suffering. - That C's right was violated nine years ago, and it had taken so long for him to get redress. - In connection with the last fact mentioned above, I must take into account the principle that was established in the case of MATIYA BYABALEMA AND OTHERS vs UGANDA TRANSPORT COMPANY, SCCA, 10/1993, in which Justice Odoki JSC held as follows in his judgment:

Courts out to assess the amount of damages taking into account the current value of the money in terms of the goods and services it can purchase at present.

Complaint No. $\ln$ Omoding Joseph $\mathbf{V}\mathbf{s}^-$ Attorney General. **UHRC/SRT/208/2005**, the evidence that was adduced by the Complainant and his witness who was at the scene of the incident, indicated that the effects of the beating, boxing and kicking that was meted out on the Complainant, included injuries on the body that resulted into bleeding as well as the worse condition of lapsing into unconsciousness which however, appears to have lasted for a short time. The medical report which was admitted by the Tribunal with the consent of Counsel for the Respondent, classified the abrasions and bruises that the Complainant suffered as "harm". In addition, the medical expert witness concluded that the injuries suffered by the Complainant would cause him psychological trauma and a dislocation of one of his elbows, with the later taking at least one year to heal. The Presiding Commissioner, Dr. Katebalirwe Amooti Wa Irumba who resolved the matter in 2011, awarded the Complainant Ug Sh. 14,000,000 as general damages plus Ug Sh. 3,000,000 as exemplary damages, and unconstitutional manner in which the State for the barbaric, inhuman security agents had treated the Complainant.

The Complainant in the cited case suffered more injuries including the serious dislocation of his joint as well as loss of consciousness, as compared to what C suffered in the case before me, although in both cases the medical expert witnesses classified the respective injuries as "harm".

I have therefore taken into consideration the aforementioned three facts as well as the serious nature of the injuries that $C$ in the instant case sustained as well as the fact that $C$ was indeed severely traumatized as a result of what happened to him. In addition, I have taken into account the rate of inflation and the value of the Uganda shilling as they stand at present, plus the fact that C's right was violated nine years ago without immediate redress.

I have however, decided to award to C slightly less amount of money than the Complainant in the aforecited precedent case was awarded. C is therefore awarded Ug. Sh. 12,000,000= (Uganda shilling twelve million only) as general damages in compensation for the violation of his aforementioned right. He is also awarded another Ug. $2,000,000=$ (Uganda shillings two million only) as exemplary damages, due to the barbaric, bestial and unlawful manner in which the police officers at Matuga Police Station treated him, and particularly the unacceptable orders that were given to them in this regards by OC Bob who was instead expected to act as a good example to them.

I therefore orders as follows:

## **ORDERS**

- 1. The complaint is allowed. - 2. R (Attorney General) is ordered to pay to C a total sum of Ug. Sh. $14,000,000=$ (Uganda Shillings fourteen million only) in compensation for the violation of his right to freedom from torture, broken down as follows:

| Total | | Ug. Sh. 14,000,000 | | |----------------------|--|-----------------------|--| | b) Exemplary damages | | Ug. Sh. $2,000,000=$ | | | a) General damages _ | | Ug. Sh. $12,000,000=$ | |

3. The said amount shall carry interest at 10% per year calculated from the date of this decision until payment in full.

- 4. Each party shall bear their own costs. - 5. Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within thirty (30) days from the date of this decision.

So it is ordered

Dated at KAMPALA on this 17Th day of FEBRUARY, 2018.

Signed by:

DR KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER