Ojok Francis Obiga & Okello David v Attorney General (Complaint UHRC 87 of 2007) [2024] UGHRC 5 (21 June 2024)

Full Case Text

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# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **HOLDEN AT GULU**

## COMPLAINT NO. UHRC/GLU/087/2007

| 1. OJOK FRANCIS OBIGA | | | |-----------------------|--------------------------|--------------| | 2. OKELLO DAVID | $\cdots\cdots\cdots$ | COMPLAINANTS |

## -AND-

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

## **BEFORE:**

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| $1. \qquad$ | Hon. Mariam Wangadya | $\mathbf{L} = \mathbf{L} \mathbf{L}$ | Chairperson | |-------------|----------------------------|---------------------------------------------|--------------| | | 2. Hon. Lamex Omara Apitta | $\mathbf{L}$ | Commissioner | | | 3. Hon. Shifrah Lukwago | $\mathcal{L}^{\mathcal{L}}$ | Commissioner | | $4.$ | Hon. Simeo Muwanga Nsubuga | $\mathbf{L} = \mathbf{L} \times \mathbf{L}$ | Commissioner |

## **DECISION**

# **Summary of the Complainant's case**

The complainants brought this case against the respondent on 31st July, 2007 seeking compensation for alleged violation of their right to protection from torture, cruel, inhuman and degrading treatment or punishment. During this period, they together with other people, lived in a camp for Internally Displaced Persons (IDPs) at Ongako, Omoro.

On 5th July, 2007 at around 9.30 pm while at Obiga's residence Okello David picked a quarrel with him over money he (complainant) owed Okello. Obiga said, "Okello kept shouting loudly that he wanted his money which made Police officers to come to my place complaining that we were shouting at the wrong hours". Policemen took them to Ongako Police Post and severely beat them with sticks and batons. Ojok suffered injuries on the buttocks and right arm. They hold the respondent vicariously liable for the alleged actions of the Police. The respondent's representative Mr. Shafi Amuru denied liability.

## **Issues:**

- 1. Whether the respondent's agents violated the complainants' right to protection from torture, cruel, inhuman and degrading treatment. - 2. Whether the complainants are entitled to compensation.

The complainants had a duty to prove their case against the respondent on the balance of probabilities. Sections 101(1) and 102 of the Evidence Act Cap 6 refer.

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# **Whether the respondent's agents violated the complainant's right** $1.$ to protection from torture, cruel, inhuman and degrading treatment or punishment

The Macmillan School Dictionary at page 779 defines "torture" as –

"extreme physical pain that someone is forced to suffer as a punishment or as a way of making them give information".

It further defines "torture" as –

"to hurt someone deliberately in a very cruel way".

Torture is outlawed by Article 24 of the Constitution of the Republic of Uganda (hereinafter "the Constitution") which provides as follows:

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

Protection from torture is an absolute right under Article $44(a)$ of the Constitution.

Torture is further outlawed by various regional and international human rights instruments to which Uganda is signatory. Article 4 of the African Charter on Human and Peoples' Rights (ACHPR), and Article 7 of the International Covenant on Civil and Political Rights refer.

In our assessment, Ojok Francis Obiga and Okello David proved their accusations against the respondent's agents on the balance of probabilities.

Obiga told the tribunal (presided over by Hon. Violet Akurut Adome) that when the policemen took them to Ongako Police Post they ordered them to lie down. He said, "They started beating us using sticks and batons on the buttocks and arms". This is exactly what he had said in his statement to the Commission investigators five years earlier which is a show of honesty and truthfulness.

Okello David's testimony also remained consistent with what he had told Commission investigators five years earlier. His evidence did not in any way depart from Obiga's. Their testimonies supported each other. He testified that policemen arrested them for making noise. He said, "They beat us with batons and sticks. They hit my left arm, fingers and buttocks".

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Their injuries were quite similar. The two complainants' testimonies remained unshaken despite spirited cross-examination by Mr. Shaffi Amuru, learned Counsel for the respondent. Their arms were hit in the process of trying to fend off beatings on their buttocks.

The respondent's submission that "this was a period of insurgency, and the complainants could have been tortured by bandits" cannot stand in light of the testimony of the LC.1 Chairman, Nyeko Solomon. Nyeko was then the LC.1 Chairman of Tetug village in Kal, Koch-Ongako, Amuru. He testified that on 6th July, 2007 while at the Internally Displaced People's (IDP) Camp at Ongako, Obiga reported to him about having been beaten by Policemen at Ongako Police Post. He said that Obiga "had wounds on his right hand". He escorted Obiga to the said Police Post to get a Police Form so he could be medically examined. Nyeko knew that it was Policemen of Ongako Police Post who had beaten the complainants, and it is the reason he asked them why they had done so, and got no answer. The complainants were not beaten by bandits.

Okello David did not adduce medical evidence to support his claim. But Ojok Francis Obiga did. Obiga called Dr. Olwedo Onen Julius who had examined him on 10th July, 2007. Dr. Onen testified that he saw the following injuries on Obiga, "wounds on the right hand, swelling on the right arm. The swelling was massive and I classified it as Harm. Soft tissue injury on the back".

Dr. Onen further testified that he re-examined Obiga the next day to determine if he had suffered a fracture of the ulna. He said, "I found a dislocation on the wrist joint. I classified it as Dangerous Harm. The classification went up due to the nature of the injury and I concluded that it was consistent with assault".

On cross-examination by Mr. Amuru, Dr. Onen said that he re-examined Obiga because he did not have access to X-ray on the previous occasion and when X-ray services became available, he did the re-examination to establish if Obiga had suffered a dislocation, which he found to be so.

We are convinced that the respondent's agents subjected the complainants to torture, cruel, inhuman and degrading treatment as stated in their claim. Policemen at Ongako Police Post beat the complainants with sticks and batons on the buttocks and arms causing them severe pain and injuries. The complainants were each other's witness. Obiga's testimony was corroborated by Dr. Onen's who examined him five days after he was tortured. Although Okello failed to adduce medical evidence, it is not a requirement of the law that every case of torture or assault must be proven by medical evidence.

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In the case of (*Fred Kainamura & Others v Attorney General & Others* 1994 V KALR 92 - Okello J held that,

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"It is true that no medical evidence to support the evidence of assault was submitted by Turyasingura. But it is not a requirement of the law that every allegation of assault must be proved by medical evidence. I think cogent evidence can do. If a witness says, 'he boxed and kicked me' that is evidence of assault. You do not need medical evidence to prove that he was boxed and kicked. That would not be the case. Medical evidence helps prove the gravity of the assault".

The testimony of Nyeko, the LC.1 Chairman also strengthened the complainants' case against the respondent.

Wherefore, we find on the balance of probabilities that the respondent's agents violated the complainants' right to protection from torture, cruel, inhuman and degrading treatment. Throughout the material time they were acting in the course of their employment as servants of the state. We hold the respondent vicariously liable for their actions.

#### $2.$ Whether the complainants are entitled to compensation by the respondent

We resolve this issue in the affirmative.

In assessing compensation to the complainants we will consider the degree of pain suffered by each of one of them.

Obiga suffered wounds on the right hand measuring 4 cm in length and 3 cm in width, a massive swelling on the right arm, and a dislocation on the This dislocation was classified as dangerous harm. wrist joint. $\rm He$ suffered immense physical pain. They were both beaten for about 30 minutes.

Okello David suffered wounds on the buttocks, left arm, fingers, and immense physical pain. Luckily both Obiga and Okello made full recovery.

The actions of the Policemen at Ongako Police Post were contradictory. They beat helpless people whom the state had collected in the camp for Police protection. It is humiliating and oppressive to cane fellow adult men.

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We will further consider that the right to protection from torture, cruel, inhuman and degrading treatment is an absolute right. Under no circumstances can torture be justified.

Accordingly we consider U. Shs.6,000,000= (Six Million Shillings only) adequate compensation to Ojok Francis Obiga. We consider U. Shs.5,000,000= (Five Million Shillings only) adequate compensation to Okello David. We so award.

### **ORDER:**

- The complaint is allowed. 1. - The respondent is ordered to pay the 1st complainant, Ojok Francis $2.$ Obiga, U. Shs.6,000,000= (Six Million Shillings only) as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment. - The respondent is ordered to pay the $2nd$ complainant, Okello David, $3.$ U. Shs.5,000,000= (Five Million Shillings only) as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment.

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The above sums of money shall carry interest at court rate from the $4.$ date hereof until payment in full.

Any party dissatisfied with this decision may appeal to the High Court of Uganda within 30 days from the date hereof.

DATED at GULU this $\frac{2}{3}$ $...$ day of $...$ 2024. $M$ Utor HON. MARIAM WANGADYA **CHAIRPERSON** HON. LAMEX OMARA APITTA **COMMISSIONER** HON. SHIFRAH LUKWAGO **COMMISSIONER** HON. SIMEO MUWANGA NSUBUGA **COMMISSIONER**

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