Omwony v Attorney General (Complaint No: UHRC/MRT/046/2008) [2017] UGHRC 27 (8 November 2017)

Full Case Text

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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION [UHRQ TRIBUNAL HOLDEN AT MOROTO COMPLAINT NO: UHRC/MRT/046/2008

OMWONY GIDEON:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

# -AND- ''

### ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

#### [BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA]

#### , ; DECISION

£ This matter was brought before the UHRC by Oima Patrick on behalf of Omwony Gideon (herein the Complainant] a resident of Aro West, Kanu Parish, Abim Sub County \*. in Abim District. Oima Patrick alleged that on the 13th June 2008 the Complainant was arrested from Kanu Parish by a Special Police Constable. That upon arrest, pmwony Gideon's hands were tied by the SPC on the back and that the Complainant was later taken to the Police Station where he was severely beaten until he became unconscious. That upon reaching Abim Police Station, the Complainant was in a very critical condition and was thereafter taken to hospital where he was admitted with acute pain around the kidneys and was unable to eat.

In accordance with Rule 11 [1] of the UHRC (Procedure] Rules, Omwony Gideon was substituted as the substantive complainant.

I I The Respondent represented by Counsel Lumbe Eric and David Magomu denied the allegations.

#### ISSUES:

During the Tribunal hearing, the following issues were framed and agreed upon by the both parties:-

- I. Whether the Complainant's right to freedom from torture or cruel, inhuman or **I** degrading treatment or punishment was violated? 1 - II. Whether the Respondent is liable? - III. Whether there is any remedy available to the Complainant?

Before 1 resolve the issues 1 wish to note that this matter was partly heard by former Commissioner Agaba Maguru. Throughout the Tribunal hearing the Respondent neither called any witness nor adduced any evidence to rebut the evidence presented to this Tribunal by the Complainant. However, the Respondent's Counsel David Magomu filed submissions in defence of the matter. Nonetheless the burden of proof still lies on the Complainant to prove the allegations against the Respondent on a balance of probabilities [See 100-102 of Evidence Act Cap *6;* Akugizibwe Amon and Attorney General UHRC/FPT/047 of 2006].

In a bid to prove his case, the complainant Omwony Gideon testified in person and called four witnesses Oima Patrick [CW 2], Ocheng Samson [CW 3], Ocheng Wilson [CW 4] and Lokwang Bismarck [CW 5].

I will now resolve the issues raised.

Issue I: Whether the Complainants right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated? &gt;

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 1 defines "torture" means any 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 hlpi for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or 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 other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

In Uganda the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected under Articles 24 and 44 of the Constitution of the Republic of Uganda. 'l

In his oral testimony the Complainant Omwony Gideon testified that at around midday on the 13th June 2008 while he was at the home of one Owiri Jonathan taking alcohol he was attacked by SPC Kalenda who accused him of being a civilian. The said SPC Kalenda was dressed in uniform and carrying a gun. He was thrown down, beaten and his hands tied on the back as he was being dragged to Kami barracks by SPC Kalenda. Upon reaching Kanu barracks, the Officer in Charge refused to detain him or record a statement from him but instead wrote a letter for him to be taken to Abim. On the way to Abim he tried to escape but he was eventually apprehended by civilians and the *asakari's who* were guarding him. That he was badly beaten by the mob around^him and as a result of the beatings he became unconsciousness. He later regained consciousness in Abim Hospital and he does not know how he got there. He was admitted at Abim Hospital for one month and as a result of the beatings inflicted upon him he still feels a lot of pain and cannot dig. That he received medication but there was not much improvement. He prayed for compensation. Upon cross examination by Respondent's Counsel Lumbe Eric he stated that his hands were tied as he was being transferred to Kanu Barracks and to Abim Police. The police officers beat him at the drinking place

, : 3

while they were drunk. He went to the drinking place with a spear. And that he had been previously arrested for attempting to kill one Okello with a spear.

CW 1 Oima Patrick in his testimony testified that at around 3:00pm on the 13th June 2008 while he was in his garden he heard people making an alarm. He later left his garden to go home but on his way home he met some people crying saying the t Complainant [his son] was dead. He was later informed that the Complainant ftad been taken to Abim Hospital. At around 4:00 pm he went to Abim Hospital where he found his son lying unconscious with his body full of dust. Upon checking on his son he observed that he had no wound but had swellings and appeared to have been beaten using blunt objects. He stayed with the Complainant in hospital for three weeks before he was discharged. He later took the Complainant home so that he could receive medication from Kami Health Centre. Upon cross examination he testified that he did not know the people who beat his son. The Complainant had a history of mental illness especially upon taking alcohol.

I CW 3 Ocheng Samson testified that at around 1:00 pm in June 2008 whil^ he was coming from his garden, he heard someone crying for help. That when he turned back he saw the Complainant being beaten by about 10 armed uniformed *askaris.* That he was at the scene for about 30 minutes trying to intervene and telling the askaris not to kill a person in his garden. That the said *askaris* were kicking the complainant using their boots and also hitting the complainant with gun butts for about 30 minutes. That the Complainant was beaten in the chest up to the head and as a result the Complainant became unconscious. That a police patrol vehicle came and took the Complainant to Abim Hospital for treatment. That he later saw the Complainant after one week behaving like a mad person and that the Complainant was being tied using a rope so that! he could not disappear.

CW 4 Ocheng Wilson testified that on the 11th June 2008 at around 1:00 pm while he was at Kanu Primary School he saw the Complainant running across the sports field with

both his hands tied in front and being chased by about 8 Policemen (Anti-stdck theft Unit ASTU). He later heard gun shots and run towards the direction where the gunshots were coming from. That upon reaching the scene he found the Complainant unconscious on the ground being beaten seriously from Samson's garden. When he tried to intervene the *Askaris* called the police patrol car and took the Complainant to Abim hospital. Two of the said *Askaris* were beating the Complainant with an uprooted stem on the back while some were guarding around. He went with the Complainant aboard the police patrol vehicle to give a statement. That he was dropped off at Abim Police Station while the patrol vehicle proceeded with the Complainant to Abim Hospital. That he next saw the Complainant two weeks later when he had been discharged from hospital and he appeared to have a mental problem.

CW 5 Lokwang Bismarck testified that he was a clinical officer working with Abim Hospital. The Complainant was admitted on the 11th June 2008 at 5:00 pm and reported a history of having been assaulted by an ASTU police constable who kicked him and stoned him on the head. He had soft and tissue injury. An x-ray showed that the Complainant had light internal bleeding at the right lower rib of the right lung. The Complainant had wounds on the head measuring 2 \* 2 cm which were 0.5 cm deep. A diachropecal injection was given to the Complainant to reduce pain, cefraloza tablets were given to avoid infection. ,

Respondent Counsel David Magomu in his submissions stated that the Complainant failed to identify the so called SPC's who allegedly beat him. CW I's evidence does not pinpoint who beat the Complainant. CW 2's stated that he saw 10 askaris in his garden beating the Complainant but he still does not identify who beat the Complainant. He further submitted that the Complainant's witnesses do not tell the tribunal who indeed tortured the Complainant. In conclusion he submitted that the Complainant might have been tortured but who tortured him is not known since there is no clear evidence as to who tortured him. Counsel prayed that the complaint be dismissed.

! 1 The Complainant in his evidence in chief stated that he was beaten from Jonathan Owili's place where he had gone to drink even upon cross examination he still stated that he was beaten from the drinking place. No evidence was adduced before this Tribunal to corroborate this fact.

The complainant in his testimony stated that when he attempted to escape from the police officers who were escorting him he was eventually apprehended by civilians and the askaris who were guarding him. He was badly beaten by the mob around him and as a result of the beatings he became unconsciousness but later regained consciousness in Abim Hospital and he does not know how he got there. He was admitted at Abim Hospital for one month. CW I did not witness the beatings inflicted upon the complainant. He met some people crying along the way who later informed him that the complainant had been taken to Abim Hospital. When he went to Abim hospital he found the complainant lying unconscious with his body full of dust. Upon checking on his son he observed that he had no wound but had swellings and appeared to have been beaten using blunt objects. He stayed with the complainant for three weeks before he was discharged. CW 3 and CW 4 corroborated he complainant's allegations. CW 3 saw the complainant being beaten by 10 armed uniformed askaris from his garden. He was at the scene for about 30 minutes and even tired but the askaris were kicking the complainant using their boots and also hitting the complainant him with gun butts for about 30 munities. As a result the complaint became unconscious. CW 4 saw the complainant running across the Kanu Primary school sports filed being chased by about 8 ASTU police men. When he reached the scene [CW 3's garden] he found the complainant unconscious on the garden. Two of the ASTU police men were beating the complainant $\mathbf{I}$ with an uprooted stem on the back while some were guarding around.

From the evidence CW 3 and CW 4 in their testimonies pinpoint the agents of the respondent and put them at the scene. CW 4 clearly states that he saw 2 of the police men beating the complainant. No evidence was adduced to show that other persons part from the police officers might have been at the scene and inflicted the beatings on the

complainant, who were at the scene and clearly identified by CW 3 and 4 clearly pinpoint the respondents agents as having taken part in the torture of the complainant.

There is no doubt that the beatings that were inflicted on the complainant constituted very serious acts of violation of Article 24 and 44 of the Constitution, the beating led to his unconsciousness. The intention of the police officers was to punish him from trying to escape from him. The complaint therefore discloses a cause of action against the Respondent. On basis of the evidence adduced before this tribunal, the evidence on record is sufficient to support the complainant's allegations. The complainant' has discharged the burden upon him. 1

I therefore hold Issue I in the affirmative.

I now turn to the remaining two issues, namely whether the Respondent (Attorney General] is vicariously liable and whether there is any remedy available to the Complainant. 1 will handle them together.

The law with regard to vicarious liability is that an employer is generally liable for the act of the employee or agent- committed within the course of the employer's business [Muwonge vs Attorney General [1957] 17; Bagume John and Attorney General UHRC/JJA/10/2007; Bashishana Francis and Attorney General UHRC/MBA/117V2OO5].

The evidence of complainant, CW 3 and CW 4 is that the complainant was subject to acts of physical torture by 8 Policemen attached to the Anti-stock theft Unit. The complainant was tortured while in absolute control and custody of the 8 police officers. No evidence was adduced by the Respondent that the torture could have been carried out by someone else, independent of the police officers, or that those who did so were on a frolic of their own outside the scope of their employment.

1 find that the Attorney General is vicariously liable for the acts and omissions of its servants. •

A complainant whose human rights are violated is entitled to compensation [Akugizibwe Amon and Attorney General UHRC/FPT/047/2006; Stephen Erau and Attorney General UHRC/397/99]. After considering the Complainant's evidence and having held issue 2 and 3 in the affirmative, the complainant is entitled to compensation. 'V

In assessing the amount of damages which a complainant should be awarded as a result of the violation of his right to freedom from torture, cruel inhuman or degrading treatment or punishment the following factors have to be taken into consideration; - that freedom from torture, cruel, inhuman or degrading treatment or punishment is an absolute right, the nature and extent of the torture and/or cruelty, the nature and the extent of injuries resulting from the torturer or cruelty (see also James Okello & Cissy Okello vs Attorney General UHRC/JJA/049/2003; Zirimu Johnson and Attorney General UHRC/344/2004; Chandia Paul and Attorney General UHRC/FP/037/2006].

CW I found the complainant unconscious at Abim Hospital he also observed that the complainant he had no wound but had swellings and appeared to have been beaten using blunt objects. The Complainant was in hospital for three weeks before he was discharged. The medical evidence shows that the Complainant had soft and tissue injury. An x-ray showed that the Complainant had light internal bleeding at the right lower rib of the right lung. The Complainant had wounds on the head measuring $2 * 2$ cm which were O.5 cm deep.

I accordingly award the complainant a sum of $UGX$ 10, 000, 000/= [Uganda Shillings ten million only) as general damages for the violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment is protected under Articles 24 and 44 of the Constitution of the Republic of Uganda.

#### ORDERS

**w**

The Tribunal therefore orders as follows;

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the Complainant a sum of UGX 10, 000, 000/= [Uganda Shillings ten million] only as general damages for the violation of his right to freedom from torture or cruel, inhuman or Regrading , l treatment or punishment.

**- \_ t** ? '

> 3. The total sum shall carry interest at Court rate calculated from the date of the decision until payment in full.

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

Dated at MOROTO this ..................day of 2017.

MEDDIE B. MULUMBA PRESIDING COMMISSIONER