Odingar v Attorney General (Complaint No. SRT/58/2006) [2016] UGHRC 23 (13 September 2016)

Full Case Text

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# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION AT SOROTI**

#### **COMPLAINT NO. SRT/58/2006**

ODINGAR MOSES :::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

-AND-

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

# **DECISION**

The Complainant, Odingar Moses, brought this complaint against the Respondent seeking general damages for alleged violation of his right to freedom from torture, cruel, inhuman and degrading treatment, and for alleged violation of his right to personal liberty.

He testified that on December 26, 2004 , he was arrested by the Uganda Peoples Defence Forces soldiers and taken to Kapelebyong Barracks from where he was handcuffed and detained in an underground cell on allegations oftheft of the police car battery.

That he would be brought out ofthe cells at night and be beaten with gun butts and slapped so that he can reveal where the battery was.

Odingar said that he was released after 5 days when the alleged actual thief was arrested.

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Odingar contends that the actions allegedly committed against him by Uganda Peoples Defences Forces (UPDF) soldiers amounted to violation of his rights for which he holds the Respondent vicariously liable. Fie seeks compensation.

#### Issues:

- (i) Whether the Respondent's agents violated the Complainant's right to protection from torture, cruel, inhuman and degrading treatment; - (ii) Whether the Respondent's agents violated the Complainant's right to personal liberty; - (iii) Whether the Complainant is entitled to compensation

Whether the Respondent's agents violated the Complainant's right to protection from torture, cruel, inhuman and degrading treatment;

The term "torture" is defined by the Prevention and Prohibition of Torture Act as well as the Convention Against Torture and other Cruel Inhuman and Degrading Treatment or Punishment, 1984 as:

*"An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtainingfrom him or her or a third person information or confession punishing him for an act he or she or 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 ofor with the consent or acquiescence ofa public official or*

*any other person acting in an official capacity"*

The words "Cruel, inhuman and degrading treatment or punishment" are added to extend to the widest possible protection against abuse whether physical or mental.

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Torture is outlawed by Article 24 and 44(a) of the Constitution of Uganda, and by several International Human Rights Instruments to which Uganda is signatory, and other domestic laws.

The Complainant, CW1, testified that on a date he could not recall, while in Kapelebyong, he was arrested and detained at the barracks by soldiers dressed in army uniform. That they arrested him on allegations ofstealing a car battery. That on three nights he would be brought out of the cell and be beaten and that he was later released after 5 days. That he went to Kapelebyong Health Centre IV for treatment.

Aruto Rose, CW2, testified that on 10th December 2004, she was together with the Complainant when he was arrested by about ten soldiers in uniform. That they removed the complainant's shirt and beat him, handcuffed him and took him to the barracks. That she later saw the Complainant the following day when she had taken him food and saw him in a big pit and was still handcuffed. That he was released after a week.

Osenyi Bernard, CW3, testified that he saw the Complainant after two days of his arrest and that he was coming out of a pit and his hands were bruised. That he was released four days later.

Ochola Paul, CW4, a senior clinical officer at Toroma Health Centre IV in Katakwi district testified and confirmed the findings he made when he examined the Complainant after the incident. That he had a history of having been assaulted by soldiers and found that he had tender and swollen arms, tender and swollen ribs

and did not have any sign of fracture. That the general condition was stable. He classified the injuries suffered by the Complainant as 'bodily harm'.

I do not have any reason to doubt the truthfulness of the Complainant's evidence. His evidence was corroborated by the testimonies of CW2 and CW3.

The Clinical Medical Officer's findings were consistent with the evidence given by the Complainant and his earlier witnesses.

The Respondent's representatives did not admit liability and proceeded to crossexamine the witnesses. However the evidence was neither contradicted nor shaken. The matter was adjourned on two occasions it came up to enable the Respondent defend thier case but they never did.

On 13lh June 2016 when the hearing of the matter came up, the Respondent's representative informed the Tribunal by letter dated 8l11 June 2016, that she was not facilitated to appear for the session in Soroti and consequently the Tribunal regarded the matter as a backlog and decided to make the decision on the same based on the available evidence.

I am convinced that the Complainant adduced ample evidence to prove that UPDF soldiers of Kapelebyong barracks subjected him to torture, cruel, inhuman and degrading treatment. They were acting in the course of their employment as servants ofthe state.

I therefore find on a balance of probabilities and hold that the Respondent's agents violated the Complainant's right to protection from torture, cruel, inhuman and degrading treatment. The Respondent is vicariously liable therefore.

Whether the Respondent's agents violated the Complainant's right to personal liberty:

The right to personal liberty is protected by the Constitution of Uganda, various International Human Rights Instruments and the Law of Tort under the tort of False Imprisonment.

RICHARD CLAYTON & HUGH TOMLINSON in their book, The Law of Human Rights, Volume I at Page 455 write as follows: "The tort of false imprisonment is committed by someone who intentionally subjects another to total restraint ofmovement either by actively causing his confinement or preventing him from exercising his privilege of leaving the place where he is. Any interference with liberty is unlawful unless the person responsible for the imprisonment can show that it is justified".

Article 23(1) of the Constitution of the Republic of Uganda provides for circumstances under which a person's liberty may be lawfully restricted.

Article 23(1) (Supra) provides in part:

"No person shall be deprived of personal liberty except in any of the following cases -

(c) for the purpose of bringing that person before a court ... upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda".

Under Article 23(4)(b):

"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".

In the instant complaint Odingar testified that he was arrested by UPDF soldiers and was detained for five days. The fact of his arrest was corroborated by CW2 and CW3 who testified that they saw the Complainant detained in a pit and was detained for more than 48 hours without being produced in court.

I am therefore convinced that the Complainant was arrested and detained by the soldiers for five (5) days. The law is that once the Complainant proves the fact of his arrest and detention, the burden shifts to the Respondent to prove that the arrest and detention was justified. *(Sekaddu v Sebaduka 1968 E. A. 213}.*

The Respondent did not make any attempt to justify the arrest and detention of Odingar. The Complainany's arrest and detention were therefore unlawful and amounted to violation of his right to personal liberty. The Respondent's agents were at all the material time acting in the course oftheir employment as servants of the state. The Respondent is vicariously liable for their actions.

## Whether the Complainant is entitled to compensation:

## Under Article 53(2) (b) ofthe Constitution:

"The Commission may, if satisfied that there has been an infringement of a human rights or freedom order payment of compensation."

I hold that the Respondent's agents having violated Odingar's human rights, he is entitled to redress.

The right to protection from torture, cruel, inhuman and degrading treatment is an absolute right under Article 44(a) ofthe Constitution.

The Respondent's agents' actions were unconstitutional and completely unjustifiable.

Consequently, in light of all the foregoing, I deem a figure of U. Shs6,000,000= (six Million Shillings) will do justice to the parties. Accordingly, I award the complainant a sum of U. Shs6,000,000= as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment and his right to personal liberty.

### ORDERS:

- (i) The complaint is allowed. - (ii) The Respondent is ordered to pay the complainant a total sum of U. Shs6,000,000= (Six Million Shillings) as follows: - General damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment - U. Shs3,000,000 - General damages for violation of his right to personal liberty U. Shs3,000,000=

Total - U. Shs6,000,000=

(iii) Any party dissatisfied with this decision may appeal to the High Court within 30 days from the date hereof.

| DATED SOROTI this at | of ( 2016. day | |-------------------------------|-------------------------| | Signed: | | | | |

**HON. (RTD). JUSTICE GIDEON TINYINONDI Presiding Commissioner**

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