Ojago v Attorney General (Complaint No. UHRC/SRT/103/2008) [2022] UGHRC 7 (24 January 2022)

Full Case Text

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## THE REPUBLIC OF UGANDA

## THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

## HOLDEN AT SOROTI

## COMPLAINT NO. UHRC/SRT/103/2008

#### OJAGO SAM :::::::::::::::::::::::::::::::::::

**AND**

#### ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

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

## **DECISION**

The Complainant (C) Ojago Sam alleges that on 9th August 2008 at around 9:00p.m he was arrested from his home by Uganda Peoples' Defense Soldiers attached to Soroti Military barracks on the allegation of illegal possession of a fire arm. That he was indiscriminately beaten and taken to Soroti Central Police Station from where he was detained up to 30th August 2008. That while in detention, he was not given any medical treatment despite his critical condition.

$\frac{1}{4}$

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

R who was on different occasions represented by Counsel (RCs) namely: Masaba Peter, Nakanabi Barbara, Topacho Juliet, Eric Mukisa Emmanuel and Senyonjo Madina denied liability and opted for putting up a defense in this matter. However the aforementioned RC's only cross examined C and his three witnesses. The was no defense put up to rebut C'S allegations as had been

initially suggested by R's side. R was also given the opportunity to file submissions which were never filed.

## **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 C's right to personal liberty was violated by State Agents. - 3. Whether R (Attorney General) is liable. - 4. Whether C is entitled to any remedy.

However, before I resolve the issues above, it is pertinent for me to note that this matter was heard by former Hon. Commissioner Dr. Katebalirwe Amooti Wa Irumba and it is from his record of proceedings that I have arrived at this decision

The two Cs were expected to discharge the duty of proving their case against R to the satisfaction of the Tribunal as required under Sections 101(1) and 102 of the Evidence Act Cap 6 laws of Uganda.

Accordingly, Rule 23(1) of the Uganda Human Rights Commission (Procedure) Rules provides that the standard of proving allegations is on a balance of probabilities.

Let me now resolve the aforementioned five issues that have been raised by the Tribunal.

# Whether C's right of freedom from torture or cruel, inhuman $$ or degrading treatment or punishment was violated by State Agents.

**C, Ojago Sam** testified that he was 37 years old. That he was married but his wife left because he was in prison. That he had one child. That on 9th August 2008 at around 9:00 p.m. while he was in his house with his wife Acen Betty sleeping, he heard someone knocking on his door and entering into the house. That the person was saying that they were UPDF Soldiers who were sent to arrest him. That the person was Lt. Engwau Justine attached to the Restore Hope Command of illegal possession of arms in the region. That the soldiers suspected

.that he was in illegal possession of a fire arm. That he remained silent but in shock. That his wife asked him to continue keeping quiet so that she could respond. That his wife got out of bed and walked to the soldiers while naked and when they saw her, the soldiers ran out of the house claiming that she was a ghost. That his wife went out and the soldiers held her and made her sit down and they told her that they only wanted him and not her. That she told them that he was inside the house.

That he dressed up quickly, got near the door and he was pulled out forcefully and thrown down. That the soldiers picked pieces of wood and hit him on his knees, ankles, elbows and all over the body. That they stepped on him and tied his hands with three pieces with rope. That his leas and testicles were also tied with a string while they were asking him to give them the gun that he had in his house. That he told them that he had no gun but Lt Engwau Justine told him that his late brother a one Etigu Paul had a gun which they believed he left with him because he loved him so much. That he told the soldiers to check his house whether he had a gun, so they searched but they did not find it. That he was thrown on an army green vehicle which had 12 red topped UPDF Soldiers. That he could see them because there was moon light and they were wearing uniforms.

That they all stepped on him and drove him to a place he did not know but later he released that it was Soroti Central Police Station. That Lt. Engwau's home was next to flying squad offices. That he was taken out of the vehicle and thrown on the verandah of the building. That he spent a night outside while tied and soldiers were guarding him. That the four soldiers who were guarding him were wearing black uniforms called "black mamba." That around 6:00a.m, another military van came and he was driven back home. That they arrived at around 7:000 and he found his relatives (mother and wife and his brother and the LCI called Epalu Robert) and Lt. Engwau chased them away. That at that time he(C) was still tied, so he was made to lie down and his house was searched. That the grass of his house was removed and his verandah dug but no gun was recovered.

That Captain Opio Alfred later told the soldiers to withdraw and he was driven to the swamp that was about 40 meters from his home. That Lt. Engwau told him that if he did not produce the gun he would be killed. That he ordered four soldiers to hold his hands and started beating him. That he was told to dig his own grave with a hoe that some boys in the neighborhood provided. That when the soldiers realized that he was weak and had fallen down, they ordered the boys (Eseru and Etigu Ale) around to dig a hole of about three feet deep.

That afterwards, Captain Opio received a phone call and he ordered that he be taken back to Soroti Central Police Station. That when they reached the Police Station he was detained in a cell with about 18 suspects who were also suspected to have illegal guns. That at that time, he was very week, bleeding and he received no treatment. That he requested the cells guard to inform his relatives about his detention but he refused saying that he was fearing the soldiers.

That after two days at about 8:30a.m, five of them (himself and other suspects) were picked from the cell and taken to the military barracks and he was told to squat while the other four suspects sat on him which caused him a lot of pain. That his mother, wife and brother called Etigu Peter came to visit him. That the other suspects were later taken to make statements while he stayed with his relatives but they were not allowed to speak to him. That when the four suspects returned, they were told to hit their fingers on a hard surface counting twenty times while the soldiers kept asking them for the gun.

That at around mid-day, the five of them were returned to Soroti Central Police Station and after one week, his mother visited him and he spoke to her through the ventilator while being supported by two suspects. That he told his mother to bring him pain killers and she brought diclofenac and tea.

That after two weeks, his mother, father and wife came to Soroti CPS and told him that Lt. Engwau wanted UGX 700,000/= for him to be released. That when they bargained, they were taken to Captain Opio who asked for UGX 300,000/=. That his mother sold two goats and paid UGX. 70,000/ to Lt. Engwau and this

money was paid when he was seeing them and it was when he had been taken back to the barracks. That they promised to release him that very evening but they did not. That he was instead released after another week on 30th August 2008 on bond signed by Captain Opio.

That he received medical treatment after he reported a case with UHRC. That he was treated at Soroti Regional Referral Hospital. That currently his ribs pain, he can no longer dig, his erection was weakened and has failed to produce again. That he visited Engurus private clinic in Nakatunya and the doctor informed him that one of his muscles on his testicles was affected. That he feels a lot of pain while doing sexual intercourse. That he cannot erect for a long time and feels dizzy when he rides a bicycle. That as a result of his arrest, he missed out on university admission.

During cross examination, C clarified that he was 26 years old when he was arrested. That he was married for four years. That he sat for senior six in 2002 and at that time he was 22 years old. That he said he was weak when everything happened to him but he could recall because his senses were okay. That he did not have a watch but had a clock in his house. That he could tell the time he was taken to CPS because he was using the sun to determine the same. That he knew Lt. Engwau Justine because she identified herself. That his hut measured 8 by 6 square feet but it had no compartments. That he calculated the depth of the hole because he was seated next to it while it was being dug.

# He further testified that;

That he was arrested twice for illegal possession of a fire arm because his late brother was working with the army and it was suspected that he left his gun with him. That it was true that he saw the money being paid - notes of 10,000 and 5,000/-. That he gave the evidence of his torture to UHRC and he went for treatment on 2nd September 2008 at Soroti Regional Referral Hospital.

That at the moment he was not married. That he has tried to impregnate many girls but he has failed. That he had evidence that he could not give birth. That

he made a statement at UHRC on 16th October 2008 and if there were inconsistencies in his testimony then his statement should also be considered.

That on the first day when he was taken to Police he was not taken inside. That when he was arrested and put on the pickup he became unconscious but when he was at the Police Station he was conscious. That the army used two army green vehicles and one white car. That when he was arrested he sat in the green military car.

**CW1, Achen Betty** testified that she was 29 years old. That C was her previous husband. That on 9th August 2008 at around 9:00p.m, while she was in their house with C, they heard a sound of a vehicle in their compound and footsteps. That shortly thereafter, they heard the door being kicked and someone ordered C to come out. That they all came out at once and the soldiers arrested C and started beating him *(he said he was not beatenfrom home -in cross examination).* That the soldiers were holding a torch and that they were also armed and wearing army uniform. That they asked him to produce the gun but C told them that he had no gun. That the soldiers told him that if he does not produce the gun they would beat him. That he was beaten using batons and wire, his legs and hands were tied with a rope from the back. That she recognized one ofthe soldiers called Justine and also saw five soldiers beating him for about one hour on the legs and ankles. That while C was still being beaten, she ran to call C's mother whom she met coming to their home.

That C was thereafter thrown on the Police vehicle and lay on his stomach and the soldiers stepped on him. That at around 6:00 to 6:30 a.m, the same vehicle that had taken C returned to their home, ordered C out and told him to throw all the property outside. That C was week, tried to carry the property but he was falling down. That the soldiers entered and carried the property themselves and searched for the gun but they did not find it. That they also searched around the verandah but the did not find it. That C was tied again and thrown back to the vehicle and taken to the swamp near their home. That herself and C's mother

followed the vehicle and found C digging a hole. That because he was weak, he collapsed and he fell down, so the soldiers gathered the boys around and ordered them to help him dig the hole. That the boys were Eseru and Etigu Alex but she could not recall the others. That they were digging the hole in search for the gun and that if he was not getting into it , they were going to kill him. That C denied having the gun and he was thrown back to the vehicle and taken to Soroti CPS and she followed them. That when they reached, they were told that C was not there. That they went to the Military barracks and asked at the quarter guard but they were told that he was not there. That the next day, they went to Soroti flying squad and they also did not find him but they were advised to go back to Soroti CPS where they reached and a Policeman told them that C was there but they did not see him. That on that same day, they had taken for him food but they were not allowed to give it to him. That Captian Opio told them that if they wanted C released, they had to pay UGX 700,000/=. That they had no money so they went back home and C's father went to Soroti CPS and bargained with Captain Opio. That C's father sold two goats and got UGX 70,000/= and when Captain Opio received it, he promised to release C. That C was released one week after the money was paid and he found her at home. That C was weak, had scars all over his body, could not erect or have sexual intercourse or do garden work. That he went to Soroti Regional Referral hospital for treatment. That at the moment, she did not know his current situation because she was not staying with him. That she separated with C after his second arrest in 2013.

During Cross examination CW1 said that she was 26 years old and born in 1985. That she had forgotten that she had stated that she was 29 years old. That C was her husband with whom she was staying. That they were not married. That they had stayed together for six years up to 2008 when he was re-arrested. That she left him because of his arrest and because he had lost sexual power. That she had a child who was born in 2004 and since that time up to 2008 she did not conceive because her relatives wanted him to first pay dowry. That she heard that C married another woman.

That C was arrested from Amen village (where they were staying) by soldiers between 8:00 to 9:00p.m. That the soldiers were in a vehicle and very many. That the car was a green and black double cabin. That there was moon light so she was able to see. That the soldiers were carrying torches, were wearing uniforms and she knew two of them as Justin and Opio. ThatJustine and Opio used to go to C's home. That C's father was a court clerk. That the two soldiers were not related to C's family. That C was beaten by soldiers who were ordered by Justin and Opio. That he was beaten using a wire lock, ropes and sticks. That the soldiers got the wire lock from their car and that during his arrest, they were at their home alone. That when C was arrested and taken, she did not follow but he was brought back the following morning and she was preparing to go and visit him. That the gun the soldiers wanted was not found.

That C was beaten again in the morning using gun buts because he failed to carry things from the house. That it was after he was taken again that she followed him. That C was detained at Sororti Central Police Station. That when she went there she did not find him but after one week, she did find him at the Police Station. That C was detained for about two weeks and Lt. Opio requested that money be paid. That she was not there while Lt. Opio was suggesting that but C's father told them so. That the latter paid UGX 70,000/- when she and Atekit Celina were there. That C was not beaten while at the Police Station. That C used to ride a motorcycle and build and a casual laborer. That he completed senior six. That she started staying with him when he had already stopped schooling.

That after his release, C went alone to get medical treatment. That he was arrested on the allegation of illegal Possession of a fire arm. That apart from her child, C did not have any other child. That she did not know what C was doing at the moment. That C was arrested on 9th August 2008. That they separated in January 2009.

During reexamination, CW1 clarified that she was not sure of her age. That she separated with C in 2009.

**CW2, Atekit Celina** testified that she was 63 years old and C was her son. That on 9th August 2008, at around 9:00p.m while she was at her home, she saw two vehicles going to C's place. That she moved closer to C's home and she heard people speaking in Kiswahili rudely. That she met C's wife Achen Betty going to her home so as to inform her what was happening. That she told her that soldiers were beating C. That she also confirmed that they were soldiers because they were flashing torches all over and beating using batons and wire locks C while telling him to produce the gun and if not they would kill him. That C was beaten for about one hour. That due to the shock on her life, she defecated on her body. That C's hands were tied with ropes and taken to the vehicle and at that time, C could not support himself. That among the soldiers, there was Justine and Opio who were giving orders.

That the next day at around 6:30a.m, C was returned home and the soldiers were still demanding for the gun, which he denied. That his hands were still tied and he was just thrown out of the vehicle and asked to put all his property out of the house. That since C was weak, the soldiers removed the property themselves, searched for the gun but they did not find it. That C was put back on the vehicle and taken to the swamp. That C's wife followed them and she told her that C was told to dig a hole and search for the gun. That after that, C was taken away. That herself and CW1 went to Soroti CPS to look for him but they did not find him. That they also went to Soroti military barracks but did not find

him. That they thereafter went back to Soroti CPS and a Policewoman informed them that C was there but had inquired whether they had brought him some drugs. That on that day, they were not allowed to see him. That on the next day at around 5:00p.m, they found C at the barracks but they were not allowed to see him. That on the following day, they went and visited him again and took food which they gave to the Police but they could not see him. That they moved for about one week and only saw C at the military barracks. That his whole body was swollen and could not lift his hands or legs. That they were allowed to speak to him when he was taken back to Soroti CPS. That they used to take him Panadol.

That they also talked to Justine and he said that he wanted UGX 300,000/=. That as a result, they sold their goats and paid UGX. 70.000/= but C was not present because he was in cells. That he was released after one week. That in total, C spent three weeks in detention. That upon his release, he had scars all over his body. That at the moment he tries to cultivate but he could not do much. That he also cannot produce because he told her that he is sexually weak.

During cross examination CW2 confirmed that she was present when C was arrested on 9th August 2008 at around 8:00-9:00p.m. That he was arrested by Wembley soldiers. That the latter were many. That she was standing at a distance. That at that time there was moon light and the distance was not too big. That the soldiers were wearing military uniform and she knew one of them as Justine who was commanding the arrest. That she knew Justine before and she was able to see him because there was moon light and the torches the soldiers were using. That she saw C being beaten by soldiers using wire lock and batons for about one hour. That Justine did not beat him. That that was the only place C was beaten from and after that he was thrown on the vehicle.

That Acen Betty was a wife to C who is her son. That at the time the soldiers came, C and Betty were alone but since she (Celina) had gone out to ease herself she saw vehicles go to C's home. That Acen was no longer staying with C because she left after C was detained and because he became weak to take care of any other person. That C and Acen had a child aged two years old. That Acen left this child behind but she did not know when the child was born. That C did not have another wife and he was planning to go back to school. That at that time he was only cultivating. That he tries to cultivate but whenever he digs, he feels dizzy and falls down. That C cannot do heavy work or do the work he used to do.

That C was detained for two weeks at the military barracks and after the soldiers asked for money so that he is released, he spent two more weeks in detention. That it was Justine who requested for this money. That she was there and herself and her husband paid UGX 70,000/= after selling goats. That she was allowed to visit C while he was detained at both the military barracks and Police Station. That she was currently taking care of C.

**CW3, Dr. Ouna Martin Acunu** testified that he was 41 years old. That he was working at Soroti Regional Referral Hospital but also supporting Moroto Regional Referral Hospital. That he held a Bachelor in MCH from MUST of 2002 and a Masters in Medicine from MUST 2010.

He interpreted the medical document in respect of C Ojago Sam and stated that it was from Soroti Regional Referral Hospital and dated 6th November 2008. That C presented a history of assault and he sustained a deep cut wound on the head, cut wound on the nostril, swollen hands and painful swelling head. That the person who examined him came up with the impression ofsoft tissue injury (STI) and he was admitted where he was to receive IV fluids and anti-biotic and pain killer injection. That he also had to have surgical tolerate that is; wounds had to be cleaned.

That the document was signed but there was no name. That he could not identify the person who examined C. That the document was certified by Dr. Datibwe Emmanuel, the Medical director of the hospital on 25th March 2013. That the

STI fell in the category of harm. That the injuries could be treated and healed depending on the force used especially on the head. That the commonest long time effect was epilepsy.

During cross examination, CW3 confirmed that he did not know who treated C at Soroti Regional Referral Hospital but he believed that he was a clinical officer in the Out Patient Department. That C's diagnosis was Soft Tissue Injury (STI) which had a relationship with assault. That C was admitted at the hospital and the document was certified by Dr. Datimwe Emmanuel. That the Doctor signed but he did not put his name. That at Dr. Datimwe was the Director of Naguru Hospital and C was examined on 6th August 2008. That it was never indicated in the document when the injuries were sustained.

The medical document from Soroti Regional Referral Hospital wad admitted as CXI.

The Lock up register from Soroti Central Police Station were admitted as CX2.

As I had earlier on mentioned at the beginning of this decision, R's side did not call any witnesses to rebut the evidence adduced by C. However, RC's cross examined C and his witnesses. R was also required to file submissions in defense of the matter but the same were not.

I am now going to look at the relevant legal framework applicable to C's allegations in order to seek to determine whether the right under consideration was violated.

Article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) 1948 defines torture as:

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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

From the above definition, I have identified five major element that I shall consider while evaluating the Cs evidence and they include:

- a) That the act inflicted severe pain or suffering on the Cs, whether physical or mental - b) That the act was intentionally inflicted on the Cs irrespective of whether it was direct or indirect. - c) That the act was carried out for the purpose of obtaining from the Cs or a third person information, a confession, intimidating or coercing them for any reason based on discrimination of any kind. - d) That the act was 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. - e) That the pain or suffering inflicted on such person was not inherent or incidental to any lawful sanctions.

The aforementioned right is also provided for under Article 24 of the 1995 Uganda Constitution and is to the effect that

No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.

The afore cited Article is also highlighted under Article 44 (a) of the Constitution as non derogable right. This provision generally shows the extent to which the right is protected and/ or its violation prohibited. Also, Ref to **Attorney General Vs Salvatori Abuki Constitutional Appeal No. 1/1998.**

Accordingly other supportive provisions of the right of freedom from torture lie under Article 7 of the International Covenant on Civil and Political Rights 1966 and Articles 4 and 5 of the African Charter on Human and People's Rights 1986.

Furthermore, in the case of **IRELAND VS UNITED KINGDOM (1978) 2 EHRR** 25, the court differentiated "torture" from "inhuman treatment or punishment" and from "degrading treatment or punishment" by noting that **torture** required a **deliberate inhuman treatment causing very serious and cruel suffering;** whereas **inhuman treatment or punishment** involved the **infliction of intense physical and mental suffering which reached a minimum level of severity;** and further that **degrading treatment** required ill treatment designed to **arouse in the victims feelings of fear, anguish and inferiority capable of humiliating** and **debasing them and possibly, breaking their physical or moral resistance.**

Therefore, as I have already mentioned under this issue, I shall be analyzing C's evidence along with the elements oftorture in order to determine whether he was indeed subjected to torture or cruel, inhuman or degrading treatment or punishment.

According to C's own evidence, it is revealed that he was not beaten by the UPDF soldiers. The evidence adduced by CW1 and CW2 are inconsistent with C's own evidence. The evidence is marred with a lot of falsehoods, exaggeration of facts and accusations against the soldiers. These are more elaborate in both C's examination in chief and cross examination where he first stated that he was beaten and thereafter denied the same, including denying his own statement that he recorded and signed with the Commission. C also adduced scientific evidence through CW3, which evidence was admitted as CXI, the same is

^questionable since it was his evidence on oath that he was never beaten bysoldiers. There was no way that the CW1 and CW2 would assert facts or create events which C clearly stated did not experience.

In the case of **ABDULLAH DHALA VS SADRUNI CIVIL APPEAL NO 32 OF 1994,** Oder JSC held that where there are contradictions in the evidence of a witness the deciding factor in law is whether they were such major contradictions as to indicate that the witness deliberately told lies to court.

In this instant case, the contradictions in all C's evidence are major and go to the root of the issue under consideration. Thus, C's evidence is inadmissible in its entirety this respect.

Therefore, in concluding this issue I have been considering, I have assessed the adduced evidence and found that C's right of freedom from torture or cruel, inhuman or degrading treatment was not violated by the UPDF soldiers.

Accordingly, C's claim in this regard fails.

## **Issue 2: Whether C's right to personal liberty was violated by State Agents.**

**C, Ojago Sam** testified that on 9th August 2008 at around 9:00 p.m. while he was in his house with his wife Acen Betty sleeping, he was arrested by UPDF Soldiers led by Lt. Engwau Justine attached to the Restore Hope Command of illegal possession of arms in the region. That the soldiers suspected that he was in illegal possession of a fire arm.

That he told them that he had no gun but Lt Engwau Justine told him that his late brother a one Etigu Paul had a gun which they believed he left it with him because he loved him so much. That he was thrown on an army green vehicle which had 12 red topped UPDF Soldiers and taken to Soroti Central Police Station where he spent a night on the verandah. That around 6:00a.m, another

military van came and he was driven back to his home so that they could search for the gun. That when the gun was not found, he was taken to a swamp near their home in search of the alleged gun. That shortly thereafter, Captain Opio received a phone call and he was taken back to Soroti Central Police Station. That when they reached the Police Station he was detained in a cell with about 18 suspects who were also suspected to have illegal guns.

That after two weeks, his mother, father and wife came to Soroti CPS and told him that Lt. Engwau wanted UGX 700,000/- for him to be released. That when they bargained, they were taken to Captain Opio who asked for UGX 300,000/=. That his mother sold two goats and paid UGX. 70,000/ to Lt. Engwau and this money was paid when he was seeing them and it was when he had been taken back to the barracks. That they promised to release him that very evening but they did not. That he was instead released after another week on 30th August 2008 on bond signed by Captain Opio.

During cross examination, C clarified that he was 26 years old when he was arrested. That he said he was weak when everything happened to him but he could recall because his senses were okay. That he could tell the time he was taken to CPS because he was using the sun to determine the same. That he knew Lt. Engwau Justine because he identified himself.

*The certified copy ofthe Lock up registerfrom Soroti Central Police Station was admitted with the consent ofRC as CXI.* C's evidence is corroborated by that adduced by CW1 and CW2 above who followed him up to Soroti Central Police Station, and the military barracks. The two witnesses also visited him while in detention and confirmed that he was released on 30th August 2008 after paying UGX 70,000/= to the UPDF soldiers.

Accordingly, as I already mentioned at the beginning of this decision, R never called any witnesses to rebut the evidence adduced by C. RC only managed to cross examine C and his witnesses. However, this did not mean that C had discharged his duty to prove his allegations of unlawful detention at Soroti CPS.

In that respect, I have now to look at the relevant legal frameworks (national, regional and international) to ascertain whether the actions of State Agents were lawful.

Article 9(1) provides that everyone has the right to liberty and security of person; and therefore no one shall be subjected to arbitrary arrest or detention. In addition, Article 9 (3) of the same Convention provides that everyone arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release.

Furthermore, the African Charter on Human and People's Rights, 1986 also provides under Article 6 that every individual shall have the right to liberty and to the security of person. That no one may be deprived of his freedom except for reasons and conditions previously laid down by the law.

The 1995 Constitution of the Republic of Uganda adopted the above mentioned provisions under Article 23 in order to ensure that procedural requirements and exceptions to the deprivation of personal liberty are expressly provided for. Article 23 of the Constitution therefore provides for the right to personal liberty and is to the effect that no person shall be deprived of the same. Clause l(a-h) provides for exceptional circumstances under which a person may be deprived of the said right, and they include: execution of a sentence or court order, for the purpose of bringing the suspect person before a court; prevention of an infectious

disease; the purpose of educating or welfare of a person below the age of eighteen; in case one is suspected to be of unsound mind; for the purpose of preventing unlawful entry into Uganda; and also other reasons as may be authorized by law.

Article 23(4) further provides that a person arrested, restricted or detained upon reasonable suspicion of his or her having committed or is about to commit a criminal offence under the laws of Uganda shall be charged in a court not later than 48 hours from the time of arrest.

In **STEPHEN ERAU AND ORYEM D/ASP AND 3 OTHERS; UHHR [2002]35,** it was held that:

> Any arrest and detention contrary to the circumstance outlined under Article 23(1) of the Constitution is a violation of the right to personal liberty.

I am also cognizant of the fact that the duty to prove that the detention was lawful lies on R. On the other hand, my take is that once it is proved by C that he was detained and his right breached, that would be sufficient for the Tribunal to discharge the burden of proof from C. For instance in the case of **SAFATI KIWANUKA VS KAMULI DISTRICT ADMINISTRATION, (1994-95) HCB 74,** Justice Kato held that:

> Once the Plaintiff has proved the fact of his arrest, it is up to the defendant to prove that the arrest was lawful.

Accordingly, C claimed that he was arrested on 9th August 2008 and released on 30th August 2008 on allegation ofillegal possession of a fire arm. His evidence in this respect was corroborated by CW1 and CW2, who on several occasions visited him when he was in detention, and also ensured that he was released by paying the soldiers money. C's evidence was further corroborated by CX2 which revealed that C was detained at Soroti Central Police Station having booked in on 8th August 2008 and signed out of the Station by Lt. Engwau. RC cross-examined C, CW1 and CW2 but their evidence was not shaken in any way in this respect.

Moreover, I did not find any contradictions or falsehoods in the testimonies of the aforementioned witnesses regarding C's detention. This therefore implies that C was detained for a period of 23 days. This aspect of C's evidence was also not challenged by R's side in any way, at all. This therefore gives me a total of 22 days of unlawful detention.

As I have already stressed, R did not present any defence evidence to rebut C's prosecution evidence. Neither was any explanation given as to why C was arrested and detained by the aforementioned State agents for a period exceeding 48 hours.

Article 23 (4) (b) part (a ) of the Constitution notwithstanding, I am left with no option but to come to a conclusion that R failed to satisfactorily justify the detention of C beyond the legal 48 hours.

C also claimed that he was not given any medical treatment while he was in detention for the serious injuries that were inflicted on him by the soldiers. Although C did not raise a separate issue in this regard, nevertheless, access to medical treatment happens to be a part of the enjoyment of the right to personal liberty as provided for under Article 23(5) (c) of the Constitution.

The aforementioned Article provides that where a person is restricted or detained, he or she shall be allowed access to medical treatment, including treatment that may be given at the request and at the cost of that person. As I already determined under issue 1, C failed to convince the Tribunal that he was beaten and therefore was in need of medical treatment while he was in Police custody.

Therefore, without wasting much time, I conclude this issue I have been considering, and find that C's right to personal liberty was indeed violated by State Agents at Soroti Central Police Station and UPDF soldiers attached to Soroti Military Barracks when he was detained C beyond 48 hours and for 23

days without plausible explanation. However, his right to access medical treatment was not violated by State Agents.

Accordingly, C's claim in respect of the second issue succeeds.

## **Issue 3: Whether the R (Attorney General) is liable for the violations.**

As I have already indicated above, I have concluded and ruled that the UPDF soldiers violated Cs right which they have proved on a balance of probabilities. The violation was committed while he was carrying out their official duties which they were was employed to by his employer. I also mentioned that R never adduced any evidence to prove the contrary, so I shall apply the principle on vicarious liability laid down in the case of **IWINA VS ARUA TOWN COUNCIL, (1997) HCB 28,** in which court held that:

> 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.

Accordingly, I shall also consider Article 119 (4) (c) of the Constitution of Uganda, which places a duty on the Attorney General to represent the Government in courts or any other legal proceedings to which the Government is a party. For this reason, therefore, since the Attorney General was from the beginning of hearing of this complaint appearing to defend the matter, he should be held vicariously liable for the violation of the Cs rights as I have already established under issue 1 and 2 above.

Accordingly, the Cs claim in this regard also succeeds.

## **. Issue 4: Whether C is entitled to any remedy.**

**\* X** Article 53(2)(b) and (c ) of the Constitution of the Republic of Uganda 1995 provides that the Commission may, if satisfied that there has been an infringement of a human rights or freedom, order payment of compensation; or any other legal remedy or redress. I have already found that the Cs' right of freedom from torture or cruel, inhuman or degrading treatment or punishment was not violated and therefore will not award anything in that regard.

In respect to the violation of the right to personal liberty, C's evidence revealed that he was detained for 23 days at Soroti Central Police Station. If I subtract two days which are allowed by law enforcement agencies to detain suspects, this gives me a total of 21 days of unlawful detention.

In the case of **AGABA BERNARD VS ATTORNEY GENERAL UHRR [2008- 2011],** the Tribunal observed that it was part of its practice to award UGX. 2,000,000/=for every seven days of unlawful detention.

In the instant case, C was unlawfully detained at the Police Station for 21 days. He was never produced before court, yet the offence he had allegedly committed was grave. It was C's prayer that the Tribunal orders R to pay him compensation for the violation of his right(s).

However, I must mention that the principle of the law laid down by J Odoki in the case of **MATIYA BYABALEMA AND OTHERS VS UGANDA TRANSPORT COMPANY SCCA NO 10 OF 1993,** was that:

*"Courts ought to assess the amount of damages taking into account the current value of money in terms ofwhat goods and services it can purchase atpresent".*

Therefore, in considering the award due to each C, I shall take into account all the above mentioned factors, and I am therefore of the opinion that R pays to C UGX 6,300,000/= (Uganda Shilling six million, three hundred thousand only) for the violation of their right to personal liberty as adequate compensation.

I therefore order as follows.

## **ORDERS:-**

- 1. The complaint is allowed in part. - 2. R (Attorney General) is ordered to pay to C, Ojago Sam a total sum of **UGX. 6,300,000= (Uganda Shillings Six million, three hundred thousand only)** for the violation of his right to personal liberty as adequate compensation. - 3. Each party shall bear their own costs. - 4. Either party not satisfied with the decision of the Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date of this decision.

So it is ordered.

DATED AT **SOROTI** ON THIS DAY OF 2022.

**SHIFRAH LUKWAGO**

**PRESIDING COMMISSIONER**