Omongin v Attorney General (Complaint No: UHRC/SRT/233/2006) [2018] UGHRC 24 (15 May 2018)

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/233/2006

OMONGIN DOMINIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

-AND-

ATTORNEY GENERAL RESPONDENT

### (BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA)

#### DECISION

The Complainant Omongin Dominic, 60 years, a resident of Laie A Village, Alelesi Parish, Katakwi Sub County, Usuk County, Katakwi District alleges that on 15th October 2006 he was arrested from his home by Uganda Peoples' Defence Forces (UPDF) soldiers attached to Arrow Brigade Headquarters, Katakwi District on allegations of being in possession of a fire arm and collaborating with Karamajong cattle raiders. That during his arrest he was severely beaten by the soldiers who later took him to Katakwi Army Barracks where he was detained until 21st October 2006. That he was later transferred to Katakwi Central Police Station where he was further detained for nine days. That he was later admitted at Katakwi Health Centre IV for two weeks until 13th November 2006 when he was taken back to Katakwi Army Barracks and released on 14th November 2006.

At the commencement of the hearing, the following issues were framed for determination:-

- I. Whether the Complainant's right to personal liberty was violated? - II. Whether the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment was violated? - III. Whether the Respondent is vicariously liable? - IV. Whether there is any remedy available to the Complainant?

The Respondent as represented by Counsel Juliet Topachu and Lumbe Eric denied the allegations. In a bid to prove his case, the Complainant Omongin Dominic testified in person and called three witnesses Dr Oluka Emmanuel (CW I) a medical doctor attached to Katakwi Hospital, Ikirin Margaret (CW II) and Angela John Robert (CW III). The Respondent did not call witnesses but Respondent Counsel Lumbe Eric filed submissions.

I will now resolve the issues in the order in which they were raised.

#### ISSUE I; Whether the Complainant's right to personal liberty was violated

As to the first issue, the Complainant's evidence in chief is that at around 7:00 pm on 15th October 2006 he was arrested from his home by seven UPDF soldiers attached to Katakwi Brigade Headquarters on allegations of collaborating with the Karamojongs. Upon arrest he was detained in a Kraal. In the Kraal he found his wife and son who had also been detained. He was later taken to Okyorimong market and thereafter taken to Katakwi Brigade Headquarters where he was detained in a cell for seven days. He was taken to Katakwi Police Station where he was further detained for nine days. While still under arrest he was taken to Katakwi Hospital for treatment where he was admitted for 13 days. After treatment he was taken back to Katakwi Police Station and thereafter taken back to the army barracks where he was released and handed over to the LC III Chairperson.

CW II testified that she is the Complainant's wife. At around 3: 00 am on a day, month and year she cannot recall while she was at home sleeping she was arrested by six armed soldiers who were in the company of the LC 1 Chairperson of her village. Upon arrest she was asked about the Complainant's whereabouts. He husband had gone for night prayers at Apolin Pentecostal Church which was about 10 kilometers from their home. In the company of the soldiers she was taken to Apolin Pentecostal Church. They reached the church at around 5:30 am. Upon reaching the church, the Complainant was arrested and taken to Ocorimongin and later to Katakwi army barracks. She did not visit the Complainant in detention at the Katakwi Barracks since she was sick but later visited him at Katakwi Hospital where he had been taken for treatment but still under detention. The Complainant was admitted for 1 ¥2 weeks and later taken back to Police Station and released.

Upon cross examination she testified that she did not visit the Complainant in detention at the Military Barracks because she was denied access. She was informed by the Complainant that he had been detained at Katakwi Military Barracks. She visited the Complainant at Katakwi Hospital.

CW III testified that he knows the Complainant as pastor at Apolini Pentecostal church. The Complainant was arrested on 14th October 2006 by five UPDF soldiers while attending overnight prayers. He later saw the Complainant after he had been released.

Upon cross examination he maintained that he was present when the Complainant was arrested by UPDF soldiers. The Complainant was arrested alone.

The Complainant also tendered in a certified copy of the Lock Up Register from Katakwi Central Police Station (Exhibit II) which shows that he was booked in on 21st October 2006 on allegations of being a collaborator Vide SD Ref 34/21/10/06 until 1st November 2006 when he was taken to Katakwi Health Centre for treatment.

The right to personal liberty is protected under Article 23 of the Constitution of the Republic of Uganda 1995. Specifically Sub Articles (2) and (4) state that;

- *(2) A person arrested, restricted or detained shall be kept in a place authorized by law.* - *(4) A person arrested or detained* - *a) for the purpose of bringing him or her before a Court in execution of an order of a Court; or* - *b) upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to Court as soon as possible but in any case not later than forty-eight hours from the time of his or her arrest*

The Complainant alleges that on 15th October 2006 he was arrested by seven UPDF soldiers attached to Katakwi Brigade Headquarters. He was detained in a cell at Katakwi Brigade Headquarters for seven days. He was later taken to Katakwi Police Station where he was further detained for nine days. While still under arrest he was taken to Katakwi Hospital. He spent 13 days at Katakwi Hospital on admission. After getting treatment he was taken back to Katakwi Police Station and thereafter taken back to the army barracks and handed over to the LC III Chairperson.

The Complainant has the duty to prove her case against the Respondents on balance of probabilities *[See 100-102 of Evidence Act Cap* 6; *Babyesiza Godfrey and Attorney General UHRC/MBA/015/2008; Birigwenkya Godfrey and Attorney General UHRC/175/2007; Kiwalabye Kyaterekera Bonny and Attorney General UHRC/MSK/65/2011].* CW II did not visit the Complainant in detention at Katakwi Brigade Headquarters since she was sick. CW III was present when the Complainant was arrested but did not see him in detention at Katakwi Brigade Headquarters but only saw him upon his release.

I have clearly studied Respondent Counsel's written submissions but he did not submit on Issue 1. The detention of the Complainant at Katakwi Brigade Headquarters and Katakwi Central Police Station is not disputed by the Respondent.

In *David Oculi and Attorney General UHRC/G/68/2003,* the Complainant was arrested on 7th February 2002 by UPDF soldiers attached to Akalo Sub County detach on allegation that his son Nixo Okwir was in illegal possession of a gun. The Tribunal held that the Complainant was illegally detained contrary to Article 23 (2) of the Constitution of the Republic of Uganda 1995.

In as far as the detention of the Complainant at Katakwi Army Barracks in a cell for seven days, this violated the provisions of Article 23 (2) of the Constitution of the Republic 1995. There is no evidence on record to show that he was serving officer of the UPDF at the time of detention and was subject to provisions of Section 119 (1) (g) of the UPDF Act. As an ordinary citizen he was not subject to the provisions of the UPDF Act *(see Attorney General vs Uganda Law Society SCCA 1/2006; Namugerwa Hadijah vs DPP & Attorney General Court of Appeal Civil Appeal 10/12; Matovu Kabuye and Attorney General UHRC/58/2002; Bwambale Bahati and Attorney General UHRC/FPT/49/2005).* Upon arrest, the UPDF soldiers should have taken him to the Police Station which is an authorized place for detention of civilian suspects.

In Mbusa Wilson and Attorney General UHRC/F/151/2003 it was held that any deprivation of personal liberty outside the prescribed instances results in a violation of the right to personal liberty. In the instance case the Complainant was arrested on 15th October 2006 by UPDF soldiers attached to Arrow Brigade headquarters, Katakwi and detained for seven days and later taken to Katakwi Cenrtal Police Station. As per Exhibit I the Complainant was in Police custody at Katakwi Police Station from the 1st August until the 14th August 2014 which is a period of 13 days. The Complainant was in detention for a period of 17 days.

The detention of the Complainant at the military barracks and his subsequent detention at Katakwi Central Police Station amounts to the violation of Article 23 (2) (4) of the 1995 Constitution of the Republic of Uganda. There was no legal justification for such prolonged detention *(see also Stephen Erau vs D/ASP Oryem & 3 others UHRC/397/99).* Therefore the Complainant's right to personal liberty as protected under Article 23 (2) (4) of the 1995 Constitution of the Republic of Uganda was infringed upon by the Respondent's agents for seventeen days.

I therefore hold Issue I in the affirmative.

## I now turn to Issue II; Whether the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment was violated?

In regards to Issue II, the Complainant's evidence in chief is that on 15th October 2006 he was arrested on allegations of collaborating with the Karamojongs from his home by seven armed uniformed UPDF soldiers attached to Katakwi Army Brigade Headquarters. Upon arrest was taken to the Brigade headquarters where a statement was recorded from him. After statement recording, the RP begun beating, kicking him and forcing him to frog match. He was handcuffed and thrown into a cell. He was later taken to Katakwi Police Station but he became sick in detention. He was thereafter taken to Katakwi Hospital where he was admitted for 13 days.

Upon cross examination the Complainant clarified that during arrest he was not beaten by the arresting officers. He was beaten at the barracks RP while in detention at Katakwi Barracks.

CW I testified that he is a Medical Superintendent at Katakwi Hospital. He interpreted Exhibit I. The Complainant was admitted at Katakwi Hospital on 1st November 2006 until 13th November 2006 when he was discharged. The Complainant was admitted with chest pains resulting from trauma and was treated with antibiotics and paracetamol. The Complainant was treated until 8th November. The Complainant's injuries were classified as dangerous harm. Upon discharge, the Complainant was fairly better but as an outpatient and kept reporting for more medication.

CW II testified that at around 3:00 am on a date, month and year she cannot recall the Complainant was arrested by six UPDF soldiers from Apolin Pentecostal church. Upon arrest the Complainant was taken to the barracks where he was beaten. She did not see the Complainant being beaten. She did not visit the Complainant in prison but visited him at hospital. She observed that the Complainant had stick marks on his body and his legs were swollen. The Complainant was weak, urinating blood and could not walk. The Complainant was discharged from Hospital after 1 ¥2 weeks and taken back to Katakwi Central Police Station and later released.

Upon cross examination CW II stated that she did not see the Complainant in detention at barracks but visited him at Katakwi hospital where he was admitted.

CW III testified that at around 7:00 am on 14th October 2006 the Complainant was arrested by five UPDF soldiers. Upon arrest, the Complainant was handcuffed and taken to a kraal which was about 400 meters from his home. He later saw the Complainant after he had been released.

Upon cross examination he testified that he saw the Complainant being beaten while boarding the Police vehicle at the kraal.

Respondent Counsel in submission contended that there no sufficient evidence to sustain the allegation. The evidence adduced by the Complainant and his witnesses shows that the Complainant was not tortured. To prove torture, medical evidence is the best evidence to prove that fact. Respondent counsel asserted that the medical evidence adduced by the Respondent did not specify the injuries sustained by the Complainant. The medical report was not from a medical doctor as per the instructions for examination demanded since the person who examined the Complainant was not a medical officer but a Clinical officer.

The right to freedom from any form of torture or cruel, inhuman or degrading treatment or punishment is protected under the Article 24 of the Constitution of the Republic of Uganda 1995 and under Article 44 (a) the right is non- derogable. The right is further enshrined under Article 5 of the African Charter on Human and Peoples' Rights 1986, The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and Article 5 of the Universal Declaration of Human Rights 1948.

Respondent Counsel in submission submitted that to prove torture medical evidence should be adduced to prove torture. The medical evidence should point to the fact that severe pain was inflicted on the Complainant. In Fred Kainamura & 2 Others vs Attorney General & 3 others HCCS 961/89;

*"But it is not 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 a medical evidence to prove that he was boxed and kicked. That would not be the law. Medical evidence helps to prove the gravity of the Assault".*

From the evidence adduced before this Tribunal, the Complainant upon arrest on allegations of collaborating with the Karamojongs, he was taken to Katakwi Brigade Headquarters were he was beaten by the RP. CW II saw the Complainant being arrested by six UPDF Soldiers and later saw him with torture marks on his body. The Complainant was subjected to beatings by the Respondent's agents in order to force him to confess to being a rebel. This amounts to torture *(see also Obutu Vincent and Attorney General UHRC/G/17/2005; Ocaya Bosco Okwera and Attorney General UHRC/GLU/260/2003; Kwesiga Paul and Attorney General UHRC/MBR/060/2008; Kukunda Julian and Attorney General UHRC/MSK/47/2012).* The medical evidence corroborates that statement of the Complainant in regard to the beatings inflicted upon him. The reason for the Complainant's torture was to extract a confession from

him. No circumstance can justify torture (see *Emoto Samuel and Attorney General UHRC/SRT/12/2005)*

In the circumstances I find that the complainant's right to freedom from torture as guaranteed under Articles 24 and 44 (a) of the Constitution of the Republic of Uganda 1995 was violated.

I therefore hold Issue II in the affirmative.

## In regards to issue III

The law on vicarious liability as laid out by Sir Charles Newbold in Muwonge Vs Attorney General (1967) EA.7 is to the effect that *"Once the acts were done by the servant in the course of his employment, it is immaterial whether he did it contrary to his master's orders or deliberately, wantonly negligently or even criminally or did it for his (servant's) own benefit, the master is vicariously liable so long* as *what the servant did was merely a manner of carrying out what he was employed to carry out" (emphasis mine).*

In order for there to be vicarious liability the servant must first be found liable. Then where the answer is positive the principal will be held to shoulder the servant's liability where appropriate. Having held Issues I and II in the affirmative, the Respondent is vicariously liable for the actions of Police officers attached to Katakwi Central Police Station and UPDF soldiers attached to Katakwi Army Barracks.

I now turn to Issue IV; whether there is any remedy available to the Complainant?

Under Article 8 of the Universal Declaration of Human Rights 1948 everyone has the right to an effective remedy by the competent national Tribunals for acts violating the fundamental rights granted him by the constitution or by law. 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.

Having answered Issues I, II & III in the affirmative, the Complainant is entitled to a remedy of compensation.

Having held that the Complainant's right to personal liberty as protected under Article 23 (2) (4) was violated by the Respondent's agents, I award a sum of Ug.shs. 5,000,000= (Uganda Shillings five million three hundred thousand only) as general damages for the violation of his right to personal liberty as protected under Article 23 (2) (4) of the 1995 Constitution of the Republic of Uganda.

In assessing the amount of damages which the Complainant should be awarded as a result of the violation of his right to his right to freedom from torture, I have taken into consideration factors such as; that the right to freedom from torture, cruel and degrading inhuman or degrading treatment is an absolute right, the nature and extent of the torture and/or cruelty, the nature and the extent of injuries resulting from the torture or cruelty (see Chandia Paul and Attorney General UHRC/FP/037/2006).

As per the testimony of CW I and Exhibit 1 the Complainant was admitted Katakwi Hospital on 1st November 2006 until 13th November 2006 when he was discharged. The Complainant's injuries were classified as dangerous harm. Upon discharge, the Complainant was fairly better but as an outpatient and kept reporting for more medication.

In the circumstances, I award a sum of Ug.shs. 6, 000,000= (Uganda Shillings six million only) as general damages for the violation of his right to freedom from torture.

## ORDERS

Accordingly, the Tribunal orders as follows:

- (1) The Complaint is allowed. - (2) The Respondent is ordered to pay the Complainant Omongin Dominic a sum of Ug.shs. 5,000,000= (Uganda Shillings five million only) as general damages for the violation of his right to personal liberty as protected under Article 23 (2) (4) of the 1995 Constitution of the Republic of Uganda. - (3) The Respondent is ordered to pay the Complainant Omongin Dominic a sum of Ug.shs. 6,000,000= (Uganda Shillings six million only) as general damages for the violation of het' right to freedom from torture as protected under Article 23 and 44 (a) of the Constitution of the Republic of Uganda 1995. - (4) The total sum of Ug.shs 11,000,000/= (Uganda Shillings eleven million shillings only) shall attract interest at 10% per annum from the date of this decision till payment in full. - (5) Each party shall bear its own costs.

Either party not satisfied with this decision may appeal to the High Court of Uganda within 30 days from the date hereof.

Dated at SOROTI this .......day of 2018.

MEDDIE B. MULUMBA. PRESIDING COMMISSIONER