Okwao and 3 Others v Attorney General (Complaint No: UHRC/ SRT/03/2008) [2019] UGHRC 23 (7 October 2019)


**THE REPUBLIC OF UGANDA**

#### **THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

# **HOLDEN AT SOROTI**

## **COMPLAINT NO: UHRC/ SRT/03/2008**

**OKWAO JUSTINE]**

**OKANYA JOSEPH ]**

**EMUAT ABRAHAM]::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANTS APIYA LUCY]**

#### **AND**

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

# **BEFORE: HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA DECISION**

The Complainants (Cs), Okwao Justine (Cl), Okanya Joseph(C2), Emuat Abraham(C3) and Apiya Lucy(C4), alleged that on 18lh August 2007, they were arrested from Ogosoi Apany village by two Police officers by the names of Obilil and Naphtali all attached to Mukongoro Police Post on the allegation of theft of groundnuts and assault. That upon their arrest, Obilil severely beat them using a gun muzzle, slaps, kicks and sticks and as a result they sustained injuries on different parts oftheir bodies. That they were taken to Mukongoro Police Post where CI and C2 were released on the next day. That C3 was taken to Kumi Central Police Station and produced before court, while C4 was left to go home that very day they had been arrested.

The Cs therefore prayed to the Tribunal to order for compensation to be paid to them by the Respondent (R) for the alleged violation oftheir right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

R through their representative counsel (RC), Topacho Juliet and Lumbe Eric denied liability and opted for defending themselves in this matter.

### **Issues:**

The issues to be determined by Tribunal are:

- 1. Whether the Cs right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether R (Attorney General) is liable for the violation. - 3. Whether the Cs are entitled to any remedy.

Under Section 101(1) ofthe Evidence Act Cap 6, it is provided that:

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence offacts which he or she asserts must prove that those facts exist.

And, Section 102 ofthe aforementioned Act also provides that:

The burden of proof in any suit of proceeding lies on that person who would fail ifno evidence at all were given on either side.

Let me now turn to the aforementioned three issues.

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

**Cl, Okwao Justine** testified that on 3rd August 2007, at around 6:00 p.m., he was beaten by a Police officer called Obilili who was attached to Mukongoro Police Post. That Obilili approached him when he was accompanied by another Police officer called Naphtali Olinga. That the Police officers were all wearing maroon uniforms and one of them was armed with a gun. That he knew the two Police officers before because he had met them at a one Opio's home. That C3 asked him to give him a lift to his home on his bicycle and when they reached, the Police officers immediately ordered them to lie down and they complied. That when they reached at C3's home, they found that some people had already gathered there and Obilil just rushed to beat them right away. That the beating took place at C3's neighbor's (Opio's) home. That Naphtali did not do anything to him but Obilil beat him on the back, buttocks, around the jaws and he also kicked him around the stomach. That Obilil used the front part of the gun to knock at hisjaw.

He added that when he was being beaten, Kedi, Malinga Peter and David Muko were all present and that they saw what happened to him. That they were beaten for about one hour and yet, Obilili did not tell him the reason why he was beating him. That even at the time when he was narrating his testimony to the Tribunal he did not know why he had been beaten. That after he was beaten, he vomited blood and his buttocks and back got swellen. That he could not hear very well. That he went to Mukongoro Health Centre III and got medical treatment. That he did not see the Policemen beat anyone else except C2, C3 and C4.

Cl further testified that C2 was slapped, kicked and beaten with a gun while C3 was beaten on the buttocks and back. That while they were being beaten, the Police Officers were telling him to explain why C3 had fought with his wife. That after he was beaten, he went as an individual and reported a compliant at Kumi Central Police Station. That after they were beaten, Obilil took the three of them to Mukongoro Police Post where he and C2 were detained for one night and then released on the next day at around 2:00p.m., but he was not given any document. That C3 remained in detention and later he was taken to Kumi Central Police Station and then sent to prison. That as a result ofthe beating, he (Cl) could no longer do any work.

During cross-examination, Cl clarified that he did not make any statement when he was taken to Mukongoro Police Post but that he had made one at Kumi Central Police Station. That it was about 10 years since the incident happened, so he could not remember some things. That Obilil was armed with a gun at the time he beat him. That it was C3 whom he met and requested him to take him to his place which was near Opio's home. That C3 did not tell him why the police wanted him. That he did not have a grudge with Obilil and that he had not heard of any fight between C3 and any other person. That while he was at the Police Post, the Policemen asked him to tell them who had beat C4.

**C2, Okany Joseph** testified that on 3rd August 2007, between 3:00p.m. and 6:00p.m., while he was in Ogosi village, he had just finished buying groundnuts from C3 who thereafter called him and told him to go to his place and pick them. That he went for the groundnuts and took them to his home but while he was on his way home, two Policemen who were wearing maroon uniforms whom he knew as Obilil and Olinga Naphtali arrested him and told him to go back to where he had bought the groundnuts from. That he wanted to resist their orders because he had bought the groundnuts and had not stolen them, but the Policemen insisted and pointed a gun at him and said that they would shoot him if he resisted.

That he was taken up to Opio James's place and they told him to leave his bicycle and the groundnuts against the wall at Opio's home. That when they reached Opio's home, there were no people at that time, but people gathered afterwards. That among the people who had gathered, there was Muko David, Malinga Peter, Kedi and Opio. That Obilil thereafter told him to lie down and he was handcuffed. That Obilil told him to tell them the person who had beat C3's wife Anyait Lucy and also told him that he was a thief because he had stolen groundnuts. That he tried to tell the Policemen that he did not know who had beaten Anayit Lucy, and when he said that he had not stolen the groundnuts, Obilili cocked his gun. That he also picked a stick and started beating him on the buttocks, back, kicked him with his gum boots around the ribs and slapped him on both ears for about one hour. That as a result ofthe beating, his back got injured. he could no longer do a lot of work, have sex with his wife or hear well.

That he got treatment from Mukongoro Health Center III and he was given injections for three days and some drugs to swallow. That after that treatment, his condition did not get better. That he went back to the health center and he was told that he had finished his treatment and therefore he did not have to go back.

He further said that he also saw the Policeman who beat Cl around the jaw with a gun. That C3 was hit using a gun around the eyes and slaps. That C4 was also beaten using a stick. That after the beating, Obilili told him (C2) to sit on the motorcycle and he was taken to Mukongoro Police Post and he(Obilili) told Cl and C3 to run up to Police Post. That when they reached the Police

Post, he was detained for one day and on the next day, they were taken to Kumi Central Police Station and their statements were recorded. That his groundnuts were given back to him but he was not given any paper to show that they had been given back. That he was only given a form and he went to the health center to get treatment. That he thereafter went back home with the medical form but it got lost.

During cross-examination, C2 clarified that C3 was a groundnut farmer. That it was C3's wife called Apiya Lucy who gave him the groundnuts. That he had not heard about any fight between C3 and one of his wives called Anyait Lucy. That he had not stolen the groundnuts but had bought them from C3. That he was treated by a person he could not remember.

**C3, Emuat Abraham** testified that on 3rd August 2007, at around 10:00 a.m., while he was at his home, two Policemen by the names of Obilili and Naphtali came after he had fought with his wife Anyait Lucy. That that was after he had caught her with another man called Osibi. That when the Police officer came, he run away and he did not know who had reported him to the Police. That the Police officers asked him to stop and he refused and instead continued running. That they followed him but they did not get him but after sometime he came back home and he found that one of the wives he had fought with was not there. That when he asked the wife who was at home where her co-wife had gone, she told him that she had gone to the Police. That at that time it was around 2:00 p.m. That he went to C2's home to tell him to go and pick his groundnuts which he had paid for, because he was going away from his home. That he went to CWl's home and he found them eating so he joined them. That as Cl was planning to go and get drugs from a nearby clinic near C3's home, so he requested Cl to cany him on his bicycle and take him to his home.

That while they were going, they had reached his neighbor- Opio James's home, a Policeman called Obilili appeared and told them to lie down. That Obilili had been accompanied by another called Olinga Naphtali and they were all wearing maroon uniform. That only Obilili was carrying a gun while Olinga had a stick. That when he looked aside, he saw C2 lying down and handcuffed. That at the scene, there was also Opio James and Kedi. That after the policemen had told them to lie down, they called his wife C4 to also lie down. That they started beating C2 with a stick. That C4 was only beaten using a stick. That Obilili later came to him and Cl and started

beating Cl while asking him to explain where he was taking him the man who had beaten his wife. That as he was still lying down, Obilili hit him with a gun on the eyes and that was why his eye was damaged. That his eye was okay before the beating. That Obilili beat him (C3) all over his body using the gun and also later got a stick and beat them on the buttocks and back. That it was him and Cl who were beaten more. That they were beaten for approximately one hour. That at that time, he was not told why he was being beaten but when they reached Mukongoro Police Post, he was told him that he had beaten his wife.

That only four people were beaten when they were at Opio's home and they included, C1,C2, C4 and himself. That after the beating, C4 was left to go back home but the three ofthem were taken to Mukongoro Police Post. That C2 was taken on a motorcycle because he was handcuffed, while him and Cl were told to run to the Police Post which was about seven kilometers because it was going to rain. That when they reached the Police post, they were detained for only that night and on the next morning, they were called to write statements. That C2 was released with Cl, while for him he was detained for one day and thereafter taken to Kumi Central Police Station, produced before court and remanded to Kumi Prison. That when he was in court he was advised to discuss the dispute he had with his wife with his in-laws and he paid them UGX 300,000= to settle the same. That he did not get any medical treatment as a result ofthe beating.

During cross-examination, C3 clarified that he had three wives. That at the time he was beaten he had only two women. That it was true that he had gone to C2's home and that he had also called C2 to pick his groundnuts from his home. That it was also true that he beat C4 and he knew the gravity ofthe offence of beating my wife.

**C4, Apiya Lucy** testified that on 18th August, 2007 at around 5:00p.m., while she was at home cooking, two armed Policemen who were wearing Police uniform attached to Mukongoro Police Post went to her home and told her to mention the person who had beat Anyait Lucy. That a Police officer called Obilili was the one who was asking her to reveal the person he was looking for. That at the time the Policemen went to her home, she was with neighbors namely, Opio James and others whose names she could not remember. That she knew the police officers because they were working at Mukongoro Police Post and she had known them earlier. That the told her to lie down and she did and they started beating her with a big stick. That she was beaten

five canes while being asked me to mention the person who had beaten Lucy, her co-wife. That she was beaten for about one hour and after the beating, she went to the hospital. That as a result of the beating, she felt pain on the back where she also sustained some bruises. That the Policemen called her to go to her neighbour's home and that was where she was beaten from. That the others were beaten with a gun butt. That after being beaten, Obilili told her to leave and the others were taken to the Sub-County Headquarters where Mukongoro Police Post is stationed. That she thereafter went back to her place until the next day when she went to Mukongoro Health Centre to get medical treatment. That she was given injections for five days for which she paid for.

During cross-examination, C4 clarified that her husband was called Emuat and he was a cultivator. That her husband only had two wives, herself and Anyait Lucy. That she had not had a fight with her co-wife before the policemen went to her home. That her husband(C3) was also around and so he was also called. That it was true that she recorded a statement at Mukongoro Police Post. That the groundnuts were being sold and they had not been stolen. That it was also true that the groundnuts belonged to C3.

**CW1, Okvvalinga Francis** testified that as the General Secretary LC <sup>1</sup> Mukongoro village he knew that the Complainants and they had lodged a complaint with Uganda Human Rights Commission. That on Saturday 18th August, 2007 at around 4:00 p.m., while he was on his way home, a certain Policeman Obilili called him to Mukongoro Police post to identify certain women. That when he reached the Police post, he found and said that he did not know them and he thereafter proceeded to his home. That on the following day, while he was going to church he received a call from Reverend Opio James that his son had been beaten by the Police. That he went to Mukongoro Police Post and found there three of the Cs who had bruises on the head. That Cl had a swollen fore head, while C2 and C3 were holding their ribs wailing in pain. That as the LCI ofthe area, he asked the Officer in charge to have the C's treated and their statements recorded. That they were all taken to Mukongoro Health Centre III.

That he then reported the matter to the District Police Commander Kumi District who called for a meeting and all people who had been tortured by Obilili. That he did not don't know how many days the Cs stayed in Police custody and when they were released. That when they all attended the meeting called by the District Police Commander, they were told that they would follow up the matter but nothing was done.

During cross-examination, he clarified that he was told that the Cs had been arrested because of certain domestic issues. That he had seen and talked to Obilili and he was the one who had told him that they were going to do harm to the Cs. That he knew Obilili personally even before the incident occurred, however, he was no longer attached to Mukongoro Police Post. That as a General Secretary, he had received so many complaints against him which he reported to the Officer- in-Charge of the Police post even before the incident took place. That there was no action taken against Obilili. He also clarified that he never saw Obilili beating the Cs but only saw bruises on their bodies. That all the Cs sustained injuries. That when Obilili called him, he was passing by while the former was at the Police Post. That at that time, Obilili was not wearing a Police uniform and he could not recall whether other Police officers were dressed in uniform. That he was the one who took the Cs to Mukongoro Health Centre III for medical treatment and he left them there being attended to. That when they came back, they told him that they had been treated. That he was not related to any of the Cs but they were the ones taking care of his animals.

**CW 2, Muko David** testified that in 2007 at about 4:00 to 5:00p.m., while he was coming back from the center in Aipany, he met Police Officers when they had already arrested Cl, C2, C3 and C4. That found when C2 was handcuffed and being beaten by Afande Obilili a Policeman attached to Mukongoro Sub County where Mukongoro Police Post was accomodated.

That all the Cs were being beaten one at a time. That they were being kicked and beaten with a gun butt. That C2 was handcuffed beaten on the buttocks with a stick. That he was also being kicked in the ribs, back and the head. That Cl was also beaten with a stick, a gun butt and he was also kicked on the face and the head. That C3 was beaten in the ribs, kicked on the fore head while C3 was beaten using only sticks.

That after the beating, they were tied with rope around the waist and taken to Mukongoro Police Post except the woman. That the Cs were only beaten by Obilili who had been accompanied by another Police officer called Naphtali. They were putting on police uniform and had one gun.


They were beaten for about one hour between 4:00 p.m. to 5:00 p.m. That he did not know what happened there after.

During cross-examination, CW2 stressed that Afande Obilili was the only one who beat the Cs. That he did not know the other Police Officer who had accompanied him. That Afande Obilili was wearing Police uniform and that he beat each of the Cs one at a time for one hour. That Obilili was also armed with a gun and he knew him very well. That he did not come to know him because ofthe incident. That there were many people like Malinga who were around at the time they were beating the Cs. That he was certain that he was not alone at the scene.

That the Cs were taken to Mukongoro Police Post by Afande Obilil. That he did not go with them to Police and could not also report the matter to the Police because it was the Police that was torturing people. That he also did not report to the Local Council <sup>1</sup> chairman.

**CW3, Alupo Hellen** said that she was a Senior Clinical Officer and In-charge of Mukongoro Health Centre III where she had worked since March, 2016.

She interpreted Cl medical report and said that Cl was examined at Mukongoro Health Centre III in 2007 and it was found that he had sustained trauma on the left cheek, stick marks on buttocks and swellings. That the injuries were classified as "harm".

She also interpreted C3 treatment notes and said that he was also medically examined from Mukongoro Health Centre III in 2007and he was found to have tenderness on both ears, contusions (swellings) across the back, stroke marks on the buttocks, tenderness right below the right breast. That the impression was traumatic injuries and he was put on treatment of PPF injections for four days, panadol (pain killer) and respic massage once a day.

Further, she interpreted C2's treatment notes and said that he also reported at Mukongoro Health Centre III in 2007, having been assaulted and sustained injuries of sticks on both buttocks and across the back. That he was diagnosed was traumatic injuries and was treated by PPF injections for four days, panadol for three days and respic massage once a day . That he completed all the treatment and she therefore believed that the patient recovered.

The medical report (PF3) in respect of Cl was admitted with the consent of RC as Cl first exhibit C1X1. The treatment notes in respect of C2 was admitted with the consent of RC as C2 first exhibit C2X1.

The treatment notes in respect of C4 was admitted with the consent of RC as C4 first exhibit C4X1.

During cross-examination in respect of Cl, CW3 clarified that it was Kumi Central Police Station that submitted the PF3 in respect of Cl and it was Justine Okurut, a Nursing Officer who used to work at the Health Center that had examined Cl. That she knew her signature and she was working at Ongino Health Centre, also found in Kumi District, but far away from Mukongoro Sub County.

She stressed that the remarks on the Police form indicated that injured had been caused by a blunt object, and injuries were classified as "harm." That injuries indicated on the form was trauma on the left cheek, stick mark on the buttocks and swellings. That the form was signed by the enrolled nurse for the in charge. That Cl was examined but also did not show whether he got treatment.

She also clarified that the PF3 did not show how old the injuries were, however, as per their classification of injuries, they could not cause disability to the patient but they could leave scars on the body.

During cross-examination in respect of C2, CW3 stressed that C2 visited the health center on 19th August, 2007 and he was treated by doctor Etyang P who had since retired but living in Kumi District. She also clarified that the doctor did not classify the injuries but that the patient was an outpatient.

During cross-examination in respect of C4, CW3 stressed that doctor Ekanya P also treated C4 but did not classify the injuries, although she had injuries on the buttocks and the back which had been inflicted by a stick. That the examiner did not indicate his name on the medical notes but had signed the same. That C4 was an out-patient who used to visit the facility once a day until the five days elapsed. That injuries found on C4 were also not classified.

During re-examination, CW3 said that she knew doctor Etyang P because she had worked with him at Atutur Hospital for three years.

It was indicated at the beginning ofthis decision that R's side never adduced any evidence to rebut the Cs prosecution evidence despite the several opportunities allowed to them to present their defense. In the case of**MARTIN EDEKU V ATTORNEY GENERAL, (1995) XI KALR 24,** court held that:

> Contentious issues are deemed admitted where a defendant does not call evidence in rebuttal.

The right of freedom from torture or cruel, inhuman or degrading treatment or punishment is guaranteed under several International and Regional human rights instruments which the Government of Uganda has signed and ratified. The same provisions have been adopted and form part ofits national legal framework.

Article <sup>5</sup> of the Universal Declaration on Human Rights (UDHR) of 1984, provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The same provision is highlighted under Article 7(a) of the International Covenant on Civil and Political Rights (ICCPR) of 1966 and Article <sup>5</sup> of the African Charter on Human and Peoples' Rights (ACHPR) of 1986 which prohibit the violation ofthis right.

Article 24 of the Constitution of the Republic of Uganda 1995 also prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. And, Article 44(a) makes this right non-derogable, despite any prevailing circumstances in the country.

I note that from the aforementioned provisions, no single provision defines what entail torture but a legally acceptable definition has been provided under Article <sup>1</sup> of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which 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 components 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.

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.

I am therefore seeking to determine whether the actions committed against the Cs constitute "torture" in line with the aforementioned UNCAT definition, or whether the adduced evidence constitute only the elements of "cruel, inhuman or degrading treatment or punishment".

According to Cl'<sup>s</sup> evidence, it is revealed that the assault he was subjected to was very intense which seriously injured his cheek (jaw), back and buttocks. All this was done so that he could tell the Police why C3 had fought with his wife. The evidence adduced by C2, C3, CW1 and CW2 clearly revealed that that the assault on Cl caused him severe pain and suffering which effects were more evident on the cheek, back. Medical evidence adduced by CW3 further corroborated the above facts.

In respect of C2's evidence, it was also revealed that the assault occasioned on him by the aforementioned Police Officer was intense hence injuring his back, buttocks and ribs. This pain was not only physical. And this was all done because the Policemen had alleged that he had stolen groundnuts from C3's home. C2's evidence was corroborated by that of C3, C4, CW1 and CW2 who saw him being beaten by the Police and knew where he had obtained the groundnuts from.

In regard to the evidence adduced by C3, it was also revealed that the assault occasioned on him was intense as it injured his ears, the back, buttocks and right breast. This assault was carried out because he had fought with his wife called Anyait Lucy. The evidence adduced by C3 and his witnesses, especially, Cl, CW1 and CW2 reveal that the assault on C3 resulted in severe pain and suffering experience by him especially on the ears, back, buttocks and right side ofthe chest. The medical evidence adduced also scientifically corroborated the above facts.

Although C's evidence was not corroborated by any medical evidence the case of **FRED KAINAMURA AND ANOTHER AND ATTORNEY GENERAL, 1994 KALR 92,** the court clearly stated that:

> It is not a requirement of law that every allegation of assault must be proved by medical evidence. If a witness says "he boxed me and kicked me" then that is evidence of assault. You do not need medical evidence to prove that he was boxed and kicked. Medical evidence only helps to prove the gravity ofthe assault.

In addition, in the case of **BLANDINA NSHAKIIRA V KAMPALA CITY COUNCIL, HCCS (248/02(24/5/04 AT KAMPALA) court observed that:**

> A person can testify in court as to her injuries without the aid of an expert medical witness as long as the party describes the injuries clearly. While it is prudent practice to seek expert

opinion of the doctor on the nature of the injuries, it is by no means implies that absence of such evidence would necessarily be fatal to the plaintiffs case. It must depend on available evidence and its quality. Medical evidence is of course helpful that it is from an expert. In its absence, other evidence may suffice.

In addition, in respect to the evidence adduced by C4, the assault that she was subjected to was less severe which caused her some pain on the back, and this was done so that she could reveal the person who had beaten her co-wife. Evidence adduced by C4 and her witnesses (C3 and CW3) clearly revealed that she suffered a cruel, inhuman or degrading treatment or punishment.

Regarding all the above evidence adduced by the Cs, R never rebutted by way of presenting a defense or filing submissions. No explanation whatsoever was given by R regarding the injuries that the Cs had sustained. RC also consented to all the Cs exhibits to being admitted as their evidence and although she cross-examined the Cs and their witnesses, their evidence remained unshaken.

In that premise, I am therefore convinced that the Cs evidence has on a balance of probabilities proved that Cl, C2 and C3 indeed suffered severe pain or suffering which was intentionally inflicted on them. On the other hand, C4 on her own was also subjected to cruel, inhuman or degrading treatment or punishment. These acts were committed by the aforementioned Police officer while executing his official duty.

I therefore find on a balance of probabilities that the aforementioned State Agent violated the Cs right offreedom from torture or cruel, inhuman or degrading treatment or punishment.

I therefore resolve this issue in the affirmative.

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

As I have already indicated above, I have concluded and ruled that the Police officer Obilili violated the Cs right which they have proved on a balance of probabilities. The violation was committed while he was carrying out his official duty which he 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 enshrined 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 ofthe 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, <sup>I</sup> shall also consider Article 119 (4) (c) of the Constitution of Uganda, which mandates the Attorney General to represent the Government in court 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 bearing responsibility to defend the same, he should be held vicariously liable for the violation of the Cs rights as I have already established under issue <sup>1</sup> above.

Accordingly, the Cs claim in this regard also succeeds.

## **Issue 3: Whether the Cs are entitled to any remedies.**

Article 53(2)(b) and (c ) of the Constitution of the Republic of Uganda 1995 provides that the Commission may, ifsatisfied 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 violated and therefore deserve compensation to be paid to them.

Furthermore, in determining the quantum of damages to be paid to the Cs, I shall take into account the following factors:

- a) That the right that was violated was non derogable as per Article 44(a) of the Constitution. - b) That the Cs suffered serious injuries especially on their backs, buttocks and ears. - c) Relevant case precedents.

d) The value ofmoney.

In the case of **OMOLA MOSES AND ATTORNEY GENERAL UHRC/SRT/206/2005; [UHRR 2012-2014] 1, 39,** the Complainant was beaten with a stick and suffered soft tissue injuries on the arm, back, buttocks which were classified as "harm." That complainant was awarded UGX 3,000,000/= as compensation for the violation of his right of protection from torture or cruel, inhuman or degrading treatment or punishment.

In the instant case, the Cs suffered almost similar consequences as the Complainant in the above mentioned case and the description of the injuries sustained were classified similar to the above. However, <sup>I</sup> 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 ofmoney in terms ofwhat goods and services it can purchase at present.

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 Cl, C2 and C3 UGX 5,000,000/= (Uganda Shillings five million) each for the violation oftheir right offreedom from torture or cruel, inhuman or degrading treatment or punishment and to C4, UGX. 4,000,000= (Uganda shillings four million) for the violation of her right of freedom from cruel, inhuman or degrading treatment or punishment; as adequate compensation.

I therefore award to all Cs a total sum of UGX 19,000,000= (Uganda Shillings nineteen million shillings only) as general damages in compensation for the violation of the aforementioned rights.

I therefore order as follows.

## **ORDERS:-**

1. The complaint is allowed wholly.

- 2. R (Attorney General) is ordered to pay to the Cs, Okwao Justine(Cl), Okanya Joseph(C2), Emuat Abraham(C3), and Apiya Lucy(C4) a total sum of UGX 19, 000,000= (Uganda Shillings nineteen million shillings only) broken down as follows: - a) For the violation of their right of freedom from torture or cruel, inhuman or degrading treatment or punishment

| TOTAL | | UGX<br>19,000,000= | |--------------------------------------------------------------------------------|--|--------------------| | inhuman<br>or<br>degrading<br>treatment<br>UGX<br>4,000,000=<br>from<br>cruel, | | | | ofC4<br>offreedom<br>b) For<br>the<br>violation<br>right | | | | Emuat<br>Abraham<br>C3, | | UGX<br>5,000,000= | | Joseph<br>C2,<br>Okanya | | UGX<br>5,000,000= | | Okwao<br>Justine<br>CI, | | UGX<br>5,000,000= |

- 3. Interest at the rate of 10% per annum to be paid on the total sum ofUGX 19,000,000/= (Uganda Shillings nineteen million only) from the date ofthis decision until payment in full. - 4. Each party shall bear their own costs. - 5. Either party not satisfied with the decision ofthe Tribunal may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision.

So it is ordered.

DATED AT SOROTI ON THIS DAY OF . 2019.

**PRESIDING COMMISSIONER DR/KATEBALIRWE AMOOTI WA IRUMBA**