Omoding v Attorney General (Complaint No. SRT/26/2007) [2016] UGHRC 22 (31 October 2016)

Full Case Text

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# **THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT SOROTI COMPLAINT NO. SRT/26/2007 OMODING MARTIN:::::::::::::::::::::::::::::::::::::::::::::::::::::;:; COMPLAINANT**

**AND**

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

#### **(BEFORE HONOURABLE COMMISSIONER MEDDIE B. MULUMBA)**

#### **DECISION**

The complainant brought this complaint against the respondent seeking compensation for alleged violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. He alleged that on 17\*October 2006, while he had gone to the kraal with his neighbors to pick the animals for grazing, he found soldiers guarding the kraal and one of his bulls had slept outside. One of the soldiers asked whose bull it was and upon him answering that it was his, they ordered him to sit down but he refused. That he was thereafter taken to the barracks where he was brutally beaten and detained in a dirty cell without a roof. That he was only rescued by the area Member of Parliament - Hon. Oleny, LC III Chairperson and the area Vice Chairperson. He holds the respondent vicariously liable.

The respondent through his representative, Ms. Topacho Juliet denied the complainant's accusations.

#### **ISSUES**

- 1. Whether the respondent's agents/servants violated the complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment - 2. Whether the respondent (Attorney General) is liable for the violation of the complainant's right. - 3. Whether the complainant is entitled to compensation.

Before I resolve the above issues I wish to state that this matter was heard by my colleague the former Commissioner Violet Akurut Adome. The decision is therefore solely based on her record of proceedings.

From the record,this matter was heard in five hearings. During the first hearing, the complainant testified but was not cross examined though both parties were present. In the second hearing, both parties were present and the complainant was cross examined, his witness testified and was also cross examined. In the third hearing, the complainant was present but respondent counsel was absent despite the fact that they had been duly served. The complainant's case proceeded exparte with the witnesses testifying and the complainant's case was closed. The fourth time this matter came up, both parties were present and respondent's counsel prayed for the complainant's case to be re-opened to enable her cross examine the witnesses but the prayer was denied. Respondent's counsel intimated before the tribunal of her intention to appeal against the order of the Commissioner to the High Court of Uganda. With this, the matter was stayed pending the appeal in High Court. However, the Respondent's Counsel never preferred the appeal and after 2 years, the matter was re-opened for defence.

I note that the respondent did not call any defence witnesses but filed written submissions in defence of the matter. Throughout the hearing, the complainant retained the duty to prove his case against the respondent to the satisfaction of the tribunal in accordance with.

Section 101 (1) of the Evidence Act Cap 6 which provides that; "Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that the facts exist"

And Section 102 of the Evidence Act (supra) which provides that; The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.' I now turn to the issues.

## **Whether the respondent's agents/servants violated the complainant's right to protection from torture, inhuman and degrading treatment;**

The constitution of the Republic of Uganda under article 24 prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. It was also emphasized in **ATTORNEY GENERAL VS SALVATORI ABUKI Constitutional Appeal No. 1/1998** that the freedoms enshrined under article 44 (a) of the constitution which include freedom from torture, cruel, inhuman and degrading treatment or punishment are non derogable.

Torture is further out lawed by several international human rights instruments to which Uganda is signatory. (See Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR), and Article 7 of the International Convenant on Civil and Political Rights (ICCPR).

The actions committed against the complainant would constitute "torture" if the same were proved.

The Macmillan School of 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 "to torture" as:to hurt someone deliberately in a very cruel way as a punishment or in order to make them give information.

The Convention Against Torture (CAT) and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 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 or punishment' are added to extend to the widest possible protection against abuse whether physical or mental.

The complainant **Omoding Martin (CW1)** testified that it was on one morning of 2007 (date and month he could not remember), while he had gone to the kraal to pick his animals, he found some animals, including his outside thekraal ; under the guard of soldiers.

### He further testified that;

"The soldiers asked whose animals they were but I told them I did not know other people who came to pick their animals and the soldiers again asked the same question and some people said my bull too was among the animals that were outside. When the soldiers heard this, they got annoyed that they had

asked me earlier but I had denied. They told me to remove my shoes, shirt; they called their boss who asked them to take me to the barracks which was nearby. They took me to the barracks and tortured me, they ordered me to sit down, they told me to lie down while they were beating me using a stick; each one of them - about 5 soldiers."

That his mother came from the village to rescue him; however when she reached near the barracks, the soldiers chased her away; hence she went to the LC III to report. The LC III together with Hon. Oleny went and rescued him. That he received treatment from Toroma Health Centre IV. A Police form 3 was tendered in evidence for identification purposes.

Upon cross examination by Counsel for the Respondent, the complainant stated that the soldiers who beat him were two and in army uniforms. That they beat him using sticks on his buttocks because they were annoyed that he had denied his own animals.

That after beating him, the soldiers took him to the cell and released him at 6.00 p.m after he had sustained injuries on his buttocks. He also stated that he was taken for treatment and he recovered fully.

**Obetel Silver** (CW2)testified that on the day and month he couldnot remember, but in 2006, when he was the LC III Chairperson,due to Karamojong rustling, they agreed as the constituency to create a big kraal where community members would put their animals while the kraal would be guarded by the arrow boys under the care of the UPDF.

That one day, he got a report from Omoding's mother, telling him that Omoding had been arrested, beaten and put in the army cell. That they had refused them to see him and give him food.

That he went with Omoding's mother to the detach as he called the one in charge of the kraal and told him that what they had done was wrong and that if the complainant was guilty, then they should have taken him to police. That the soldiers guarding the kraal refused his advice and hence he found him and told him what had happened, but this commander also refused since he was drunk. So he called their In Charge who came later in the evening about 7.00 p.m. He told the In Charge that what his soldiers had done was inhuman so recommended that he transfers his commanders with the soldiers who beat Omoding. That the In Charge eventually released Omoding.

Upon cross examination Counsel for the Respondent, he stated that he was still the chairperson of Toroma and that the soldiers detained the complainant because he had gone to pick his animals but, he argued with the soldiers, who were keeping the kraal. However, he stated that he never saw the complainant being beaten since he was not there. That he only intervened when the complainant's mother told him what had happened.

Counsel for the Respondent put it to the witness that at the time of recording his statement, he said he did not seen any torture marks on that complainant and indeed upon evaluating his statement to the Uganda Human Rights Commission recorded by the investigation team under **R9(d),** the witness stated as follows;

"I did not see any physical torture marks on his body but according to the information I got from the people who were present at the time when the complainant was arrested, they told me that Omoding had been beaten by the soldiers"

**Sec 59 of the Evidence Act** provides that oral evidence must in all cases whatever be direct, that is to say, if it refers to a fact which could be seen, it must be evidence of a witness who says he or she saw it.

In the instant case, the witness did not see the complainant being beatenby the soldiers as alleged and so his evidence is hearsay. I shall therefore disregard this testimony of the witness on the ground that it is hearsay evidence.

**CW3, Asio Dorothy** interpreted the medical report and stated as follows, That Omoding Martin who was assaulted and he went for treatment on 18th October 2006. That he had multiple bruises/wounds and whips which were sighted on the right lumbar region and the muscles around the buttocks. These were associated with some swellings on the lumbar region and buttocks.

That the conclusion was that this was as a result of a blunt object. There was no evidence of serious deformation elicited. That the complainant was seen by the Senior Clinical Officer (Ochole Paul) who was at that moment at school. That the harm meted on him was no dangerous or serious and he was given pain killers and anti biotics. The medical report was tendered in as an exhibit and marked **CEX1**

**CW4,Otim Charles** testified that it was in 2007, when they used to have a communal kraal which all the county members used to take their animals since the Karamojong used to raid the animals. That the kraals were being guarded by the soldiers (UPDF). That on the fateful day, Omoding went to the kraal to pick his animals, he was ahead of him. When he reached, he saw Omoding with another person being taken to the barracks by the soldiers, while being pushed.

That he inquired from one of the soldiers who remained behind why Omoding was being taken to the barracks. That the soldier said that Omoding's animals had slept out and that their bosses had ordered that such people be displined. That when they reached the barracks which was about 150 - 200 metres, he saw Omoding being beaten with sticks. The soldiers did not want them to go to

the barracks. That he, together with Omoding's mother went to the LC III chairman. The chairman went and found when they had put Omoding to the cell of the Sub County and had not given any food. The chairman approached the high authority that is the Area MP, Mr. deny who came with some soldiers and in the evening, Mr. Omoding was released.

As noted before, the respondent's counsel never cross examined these last two witnesses since they were absent with no explanation and the tribunal waived their right to do so.

I note that the respondent did not call any evidence to rebut that of the complainant but filed written submissions in defence.

In her submissions, counsel for the respondent argued that the complainant's injuries were classified as harm and so were not serious to amount to torture. She also stated that the complainant's witness did not see the soldiers beating him and so it was only his word that he was beaten by soldiers. She therefore prayed that in case the tribunal finds the respondent liable, the complainant be awarded 700,000= as full and final compensation.

I find it difficult to believe that the complainant was not beaten by soldiers since his allegation of beating was corroborated by CW4 who saw the complainant being beaten by the respondent's agents as he was being taken to the detach. More so, the reason for the beating was to punish him for refusing to obey the orders of the soldiers and so it amounted to torture.

WHEREFORE I find on the balance of probabilities that the respondent's agents violated the complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment.

## **2. Whether the respondent (Attorney General) is liable for the violations against the complainant's rights**

As resolved in the above issue, there was a violation of the complainant's right freedom from torture or cruel, inhuman or degrading treatment or punishment contrary to Articles 24 and 44 of the 1995 constitution of Uganda.

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

The vicarious liability of Government for acts of police officers is derived from the functions of the Government of Uganda which include being responsible for defence, security, maintenance of law and order, as recognized under **Article 189 and item 2 in the 6th schedule to the constitution** of **Uganda 1995** as amended, is the furthest end of the criminal justice system in Uganda under the auspices of Government's duty of keeping law and order.

In relation to the law on vicarious liability it is clear that, it is however immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable as stated **inMuwongeVs A. G (1967) EA 17.** It is thus irrelevant whether the acts done by the soldiers were unjustified or unauthorized as long as they did 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

(1) a wrongful act authorized by the employer, or

(2) a wrongful and unauthorized mode of doing some act authorized by the employer

In the instant case the soldiers arrested Omoding Martin (complainant) and beat him in the process of arrest. These soldiers both individually and severally worked on behalf of the state which is their master hence it was proper for Attorney General to represent Government in this matter for the soldiers who beat the complainant during arrest.

Therefore the Attorney General in this matter is vicariously liable for the violation of the complainant's right of to freedom from torture or cruel, inhuman or degrading treatment or punishment by soldiers who individually and severally were at the time serving their master and employer the state.

## **3. Whether the complainant is entitled to compensation:**

Article 53(2) of the Constitution provides that:

'The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

(a)

(b) payment of compensation; or

Having held that the respondent's servants/agents violated the complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment, it follows that he is entitled to compensation by the respondent.

I will consider the right to protection from torture or cruel, inhuman or degrading treatment or punishment is an absolute right under article 44(a) of the Constitution of the Republic of Uganda.

In the instant case the complainant prayed to this tribunal to order compensation to him in monetary terms for the money spent on treatment. On the other hand, respondent's counsel submitted that a sum of UGX 700,000/ be paid to the complainant as compensation.

However, I note that the Complainant did not provide any evidence to support his expenditure on treatment. This notwithstanding, I find that the complainant is entitled to compensation for the violation of his right. This is based on the principle in the case **of Christopher Ssajabi Nsereko\_Vs Attorney General UHRC No. 112/99 in which** Commissioner F. Mariam Wangadya held that indeed human rights and freedoms would serve no purpose if their violations did not attract redress to the victims.

To determine the amount of money to be paid as compensation, It will based on the injuries he sustained and the severity of the pain and suffering he has experienced as a result of torture. I take note that the Complainant was beaten on his buttocks using sticks by the soldiers as a way of punishing him for not telling them that he had cows in the kraal. But I won't lose sight of the fact that the complainant recovered fully after being treated with pain killers and anti biotics.

Furthermore, I will take into account the case of **Matiya Byabalema and others Vs Uganda Transport Company SCCA No 10 of 1993** where it was stated that "courts (in this case, the tribunal) 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".

Accordingly; I find a sum of UGX 2,000,000/ as adequate compensation in the circumstances.

## **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (Respondent) pays the Complainant Omoding Martin, a total sum of U. Shs2,000,000/ (Two million Uganda Shillings)

as compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment by State agents.

- 3. The said amount of U. Shs 2,000,000/ only (Two million Uganda Shillings) will carry interest at 10% per annum from the date of this decision until payment in full - 4. Each party shall bear their own costs.

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

## **DATED AT SOROTI on this .....^, day of....£^7..' 2016**

**HON. MEDDIE B. MULUMBA PRESIDING COMMISSIONER**