Okudra Joel v Attorney General (Complaint UHRC 131 of 2006) [2018] UGHRC 19 (15 April 2018)


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT KAMPALA COMPLAINAT NO: UHRC/131/2006

OKUDRA JOEL ::::::::::::::::::::::::::::::::::::

**AND**

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

### [BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA]

#### **DECISION**

The complainant (C), brought this complaint before the Commission alleging that on the 19<sup>th</sup> July 2006, while at a building site in Naguru Police Barracks at about 1:00p.m, four operatives of the Violent Crime Crack Unit (VCCU) Unit among whom was Gulama Steven, informed him that he was needed at VCCU in Kireka. That he was taken by the operatives to their offices at VCCU where he met one Obua Denis who accused him of theft. He further alleged that Obua and other operatives ordered him to remove his shoes, and then beat him severely on all joints including the knees, ankles and elbows;

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and that as a result, he sustained grievous injuries. That while at VCCU, he was subjected to beatings on a daily basis for a duration of close to an hour.

The Respondent (R), represented by Counsel Madete Geoffrey denied the allegations.

#### **Issues:**

The following issues were agreed for resolution:

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

#### **Resolution of issues:**

## Issue No. 1: Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated

I shall determine this issue within the context of the relevant legal framework established for the guarantee and protection of peoples' right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

The Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 (UN CAT) defines "torture" 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.

The words 'cruel, inhuman or degrading treatment' are added to extend to the widest possible protection against abuses whether physical or mental.

The Universal Declaration of Human Rights 1948 states under Article 5 that:

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

Similarly, the International Covenant on Civil and Political Rights (ICCPR) 1996 explicitly and totally prohibits torture or cruel, inhuman or degrading treatment or punishment, when it states as follows under Article 7:

No one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment.

The African Charter on Human and Peoples Rights (ACHPR), 1981 under Article 5 also totally prohibits the aforementioned infringement by stating that:

All forms of exploitation and degradation of man,

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particularly slave trade, torture, cruel, inhuman or degrading treatment or punishment shall be prohibited.

The Constitution of the Republic of Uganda under Article 24 and 44 also totally prohibit the violation of an individual's right to freedom from torture, cruel, inhuman and degrading treatment or punishment, with the latter Article making this right non-derogable. This was also emphasized in Attorney General Vs. Salvatori Abuki, **Constitutional Appeal No.1/1998** that where it was stated the freedoms enshrined under Article 44 (a) of the constitution are non derogable which include freedom from torture, cruel, inhuman and degrading treatment or punishment.

Also in the case of **State Vs. Williams (1995)1 CHRL 35,** in which it was held that punishment must respect human dignity and be consistent with the provisions of the Constitution.

Accordingly, the actions committed against C would constitute "torture" if the same were proved as such. I will determine the issue under consideration in line with the definition of torture as provided under the aforementioned Article 1 of the UN CAT cited above.

I shall therefore evaluate the evidence adduced with a view of determining whether the treatment that is alleged to have been meted out on to $C$ by the state agents amounted to the level of severity that constitutes what would be categorized as torture within the meaning of the definition of torture provided under Article 1 of the UN CAT. If not, then I shall determine whether the effects of the same actions amount only to what is categorized as cruel, inhuman or degrading treatment or punishment.

The four ingredients of torture are:

- a) Whether the action has caused the victim severe pain or suffering, whether physical or mental. - b) Whether such pain or suffering was intentionally inflicted on the victim. - c) Whether the purpose of the action was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based $\quad\text{on}\quad$ discrimination. - d) Whether the actions were inflicted by or at the instigation of, or with the consent or acquiesce of a public official or other person acting in official capacity.

If the above ingredients are proved, then it will have been established that C was subjected to torture in contravention with the laws already cited above.

C testified that one Monday morning at around 8.30 a.m. in 2006 while he was working at Naguru Police Barracks where he had a job to build a house for a one Gerald, he was approached by four armed operatives from VCCU dressed in civilian clothes who informed him that they needed him to build for them a structure at Kireka, similar to the one he was building at Naguru. That he replied saying that he would only do it after completing the project he was already working on. That the operatives then asked him and another man whose name he could not remember, to help them push their car and when they refused on account that they were busy, the operatives arrested them, forcing him to leave his tools and other belongings at the site. That before they were driven off, another policeman, a one Gule Alphonse, who saw them being arrested and taken inside the car tried to speak to the operatives but instead they sped off.

C further testified that the VCCU operatives then ordered him to lead them to his home where they suspected him to have kept property belonging to a police officer at VCCU, a one Obua Denis and which it was alleged that he had stolen. That upon

reaching his home, they searched the home but did not find any stolen property. He was put into the vehicle and taken to VCCU offices at Kireka where they paraded before Obua Denis and the police officers specifically introduced him to Obua Denis, as the Okudra Joel who had stole his property. That thereafter, he was ordered to go to the counter where he was orderd to remove his clothes save for the trouser. That the officers then put him in small room where he was beaten for about an hour by Obua Denis and two other police officers with a big stick of about a meter long on the shoulders, elbows, hands, knee joints, ankles, the head and all over the body. That as the officers beat him, another officer at the counter by the names of Komakech intervened insisting that C was innocent but the officers kept beating him as they demanded from him to reveal the whereabouts of Obua's property. C also stated that as a result of the beatings, his legs got dislocated and he sustained injuries on the whole body. That he sustained swellings especially on the shoulders, elbows and knees, and his hands were bleeding. That the officers ordered him to go back into the cell and because of the injuries, he had to be supported to walk to the cell. That on the following day, he was taken out of the cell again and beaten by the same officers who beat him the previous day, for about 30 minutes as they interrogated him about officer Obua's property, and then he was taken back to the cell.

That he was released on bond four days after he was arrested after his brother, Cleopus intervened.

C's first witness, Gule Alfonsa **(CW1)** testified that he had known C from the time he was working at Central Police Station with C's brother, Cleopus who was a police officer as well as his neighbor in the police barracks at Naguru. That in 2006 on a date he could not recall, he was driving the police patrol car attached to Central Police Station, Kampala (CPS) to Naguru barracks to collect the incoming police officers. That as he was still waiting for the incoming officers, he saw a white saloon car which he identified as belonging to a sister force, VCCU. That he drove towards the patrol car to find out what was happening from the vehicle and that is when he saw an officer come out and got hold of Okudra Joel by the neck and pushed him in the saloon car together with another boy called Tom Epaku. That when he inquired from the arresting officers as to the reason why the latter were arresting the duo, the latter told him to follow them if he so wished since he had a patrol car. He further testified that he followed them up to Spear Motors and saw that the car was headed to Kireka, and that is when he returned and informed C's brother about the arrest. That three days later, he inquired from C's brother on what had transpired and the brother informed him that C was detained at Kireka and had been tortured to an extent that he could not move. That C was released on the fourth day after his arrest and he informed him that he had been arrested on the orders of Obua Denis who accused him of stealing his property. That upon his release, C's right leg was swollen and also twisted to a degree that he was barely moving it. That he advised $C$ to report the matter to Uganda Human Rights Commission.

C's second witness (CW2), Andama Cleopus who is also C's brother and a policeman working as an Assistant Inspector of Police, testified that on a date he could not recall in the year 2006, he was informed by a one Gule Alfonse (CW1) that his brother, C had been arrested by VCCU on allegations of theft. That he had broken into Police officer Denis Obua's house and picked a TV, deck and speakers. That on the following day he went to VCCU where he found C in poor physical state, which he described as follows:

> ....when I reached Kireka, they told me to wait up to around 2:00 pm to see my brother. When I was allowed to have access to see him, he was supporting himself with a stick, his right leg was badly injured, very swollen, twisted that it could even be turned to face backwards. There were beating marks all over his body which was swollen.

CW2 further testified that he was informed by a policeman who was at the reception that C had been beaten by Obua Denis and that when he requested that C be released so that he could be taken for treatment, he was told to come back the next day since the In Charge was not around. That on the following day, he went back to VCCU offices where he found Obua Denis, and when he confronted him as to why he had treated $C$ in a cruel manner, Obua responded that $C$ had stolen his property since he is the one who had repaired his house a week before. That C was then released on bond and he sought for treatment. That he also advised him to report the matter to Uganda Human Rights Commission.

C's other witness, Kyazze David (CW3), a medical doctor based at Kampala hospital interpreted C's medical records issued at African Centre for Treatment and Rehabilitation of Torture Victims (ACTV). He testified that C was examined by Dr. Joy Naiga whom he knew well as a colleague when they worked at ACTV. That C was first examined on 21<sup>st</sup>July, 2006 and he complained of painful joints, specifically the knees, ankles and elbows which were swollen and the history revealed that this happened after an encounter C had with VCCU officials on the 19<sup>th</sup> July, 2006. That C also complained of chest pains. After the examination, it was concluded that the injuries sustained by C were consistent with torture.

I must point out that despite the several adjournments that were granted in this matter, R did not present any defence witnesses. I shall therefore uphold the principle that was contained in the judgment delivered in the case of **Eduku vs Attorney General** (1995), X1 KALR 24, in which court held that:

> Contentious issues in a case are deemed admitted where a defendant doesn't call evidence in rebuttal.

> > $\mathbf{8}$

It is C's claim that he was beaten by police officers attached to VCCU on allegations of theft of property belonging to Obua Denis. That the operatives ordered him to remove his clothes and shoes, and then they beat him severely on the joints including the knees, ankles and elbows.

C's evidence is corroborated by CW1 who testified that he witnessed the arrest of C by officials attached to VCCU. CW1 also described the state C was in at the time he visited him in detention, and both CW1 and CW2 described the situation of C upon his release.

I find that the above evidence discloses a violation of C's right to freedom from torture, cruel, inhuman and degrading or punishment contrary to Articles 24 and 44 of the Constitution of the Uganda. The VCCU officials intentionally inflicted severe physical and mental pain on C when they beat him on the knees, and elbows, and kicked him all over his body with the intention of extracting a confession or information from him on the whereabouts of the alleged stolen property. This amounted to torture within the provisions of Article 1 of the UNCAT (cited above).

The first issue for resolution is therefore resolved in the affirmative.

## Issue 2: Whether R (Attorney General) is liable for the violations:

According to Article 119(4) (c) of the Constitution and Section 10 of the Government Proceedings Act, the role of the Attorney General is to represent Government in any civil proceedings to which Government is party.

In the case of Muwonge Vs. Attorney General (1967) EA 17, it was held that a master is liable for the acts of his servants, whether the acts done by the servant are erroneous or unlawful or done without authority. It is thus irrelevant whether the acts done by the police officers were unjustified or unauthorized, as long as they carried out such acts in the course of their employment.

Similarly, in the case of Jones Vs. Tower Boots Co. Ltd 1997 ALLER 40 B the court held that an act is within the course of employment if it is either:

- a) a wrongful act authorized by the employer, or - b) a wrongful and unauthorized mode of doing some act authorized by the employer.

In the instant case, C was arrested and beaten severely and injured by policemen attached to VCCU. The evidence adduced by C reveals that the actions of the police officers were carried out in the course of their employment and specifically in this case, investigations into the theft of property belonging to one of their colleagues. The police officers therefore both individually and severally worked on behalf of the state which was their master. Therefore, the Attorney General who represents the Government in this matter is vicariously liable for the violation of C's right.

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

A person whose human rights are violated is entitled to a remedy. Under Article 53 (2) of the Constitution, the Uganda Human Rights Commission may, if satisfied that there has been an infringement of a human right or freedom, order for payment of compensation or give any other legal remedy or redress.

In this complaint it has been proved to the satisfaction of the Tribunal that C's right was violated. I therefore find that C is entitled to a remedy in form of compensation

I shall determine the quantum of the damages to be ordered taking into account the case of Matiya Byalema and Others Vs Uganda Transport Company, SSCA No 10 of 1993, where it was stated that "courts ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present."

I am also taking into account the fact that the aforementioned first violation affected a non-derogable right. In addition, C testified honestly.

I am therefore awarding C Shs. 8,000,000/= (Shillings eight million only) as general damages in compensation for the violation of his right of freedom from torture, cruel, inhuman and degrading treatment by State agents.

I am therefore ordering as follows:

## **ORDERS:**

- 1. The Complaint is allowed. - 2. R to pay to C a sum of $UGX.8$ , 000,000= (Eight million Uganda Shillings) as compensation for the violation of his right to freedom from torture. - 3. The above sums shall attract interest at Court rate from the date of this decision till payment in full. - 4. Each party to meet their respective costs.

5. Either party not satisfied with this decision may appeal to the High Court of Uganda within 30 days from the date of this decision. So it is ordered.

Dated at Kampala this .................................... KATEBALIRWE AMOOTI WA IRUMBA DR. PRESIDING COMMISSIONER Delivered by KIIZA Moreen Streel Registrar in<br>the presence of the Complement on the<br>sth day of April 2018 pais