Onyepa Stephen v Attorney General (Complaint UHRC 31 of 2013) [2022] UGHRC 2 (22 February 2022)


# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION **HOLDEN AT JINJA COMPLAINT UHRC/JJA/31/2013**

**COMPLAINANT ONYEPA STEPHEN::::::::::::::::::::::::::**

#### **AND**

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

## BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO

#### DECISION

C, Onyepa Stephen alleges that on 8<sup>th</sup> May 2013 he was arrested by Police Officers attached to Gogonyo Police Post on the allegation of obstruction of justice. That he was taken to the Police Post but while he was there, the Officer in Charge a one Abyombe Ali pulled his testicles for about five minutes. That this prompted him to bite the Officer's hand who in turn slapped him hard on the face. That his head was pushed hard on the wall and then down to the floor and thereafter he was beaten all over the body using a baton for about 30 minutes. That he was detained in a cell for one night and the following morning, he was released on bond. That he sought medical treatment from Gogonyo Health Center III from where he was further referred to Pallisa Hospital.

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C therefore prayed to the Tribunal to order the Respondent (R) to pay him compensation for the violation of his right to personal liberty by State Agents.

R was represented by six counsel (RC) namely, Ms. Ejang Moreen who denied the allegations made by C and opted for putting up a defense in this matter. However, RC only cross examined C and his witnesses. No defense case was put up to rebut C's evidence in order to disprove his allegations as it had been earlier suggested.

#### **Issues:**

The issues to be resolved are:

- 1. Whether C's right of freedom from torture or cruel, inhuman and degrading treatment or punishment was violated by State Agents. - 2. Whether R (Attorney General) is liable for the violations. - 3. Whether C is entitled to any remedy.

R's failure to put up a substantive defense case did not take away C's duty to prove his allegations to the satisfaction of the Tribunal as required under Sections 101(1) and 102 of the Evidence Act Cap 6,

However, it should be noted that the standard of proving this claim against R is on a balance of probabilities as per Rule 23(1) of the Uganda Human Rights Commission (Procedure) Rules 1998.

Before I resolve the said issues above, I must note that this complaint was originally before His Lordship Honorable Retired Justice Gideon Tinyinondi (RIP) and therefore the Tribunal record I shall be referring to was made by him.

### Whether C's right of freedom from torture or cruel, inhuman or $$ degrading treatment or punishment was violated by State Agents.

C, Onyepa Stephen testified that he was a farmer/cultivator. That on 8th May, 2013 around 1:00p.m while he was at his home with his children having a meal, he was arrested by two Police officers and taken to Gogonyo Police Post. That the Police officers had come to arrest a one Ibinka Dorothy, his younger wife who had fought with his first wife Akello Janet. That the Police Officers did not find his younger wife but he told them that she had gone to the borehole. That the Officers instead arrested him saying that he had aided her to escape.

He added that he was therefore taken to Gogonyo Police Post from where a one Ajombe who was also the Officer in Charge slapped him hard on the face. That he (Officer in Charge) grabbed his testicles hard and pulled him by the testicles while taking him to his office. That while he was in the office he slapped him on both cheeks and he thereafter got a stick and started beating him all over his That he was body for about an hour. That he also hit his head on the wall. later told to remove his shirt and he was taken to the cell where he spent a night. That his young wife Ibinika was never arrested.

He further added that after his release, he was sent to a one Police vigilante called Opedudu to take him to the hospital and he was taken to Gogonyo Health Centre III. That he also received treatment from Obule Clinic which is found in Apworo Trading Centre.

During cross-examination, C clarified that he was detained in a uniport and the only suspect in that uniport. That at the Police Post, there was a total of about six uniports. That the Officer in Charge's office was accommodated in a different uniport. That he knew the Officer in Charge even before he was arrested. That at the Police Post, there were other two police officers and three vigilantes, including Okobore, Oryem and Ekuma. That he was the only suspect in the cell throughout his detention. That he was released on bond on condition that he reported back to police on a certain date which he did.

C clarified that when he was taken to Gogonyo Health Center III, there was no medicine and that was why he was not treated from there. That in the alternative, he went and got treatment from a private clinic but he did not have the receipts. That he was given treatment for the injuries he sustained while in custody. That when he went to Pallisa Hospital, he was not treated but only given a list of medication to get from a different clinic.

He further asserted that he was still feeling pain and he was going for review or examination. That he did not have the documents at the time.

During re-examination, C clarified that he was wearing a trouser at the time when his testicles were pulled.

CW1, Angiro John testified that he was a Senior Medical Officer at Pallisa Hospital. That he has worked at the hospital since 2006. That he held a bachelor of Medicine and Surgery from Makerere University (MUK) in 1986 and an ordinary Diploma in Ultra Sound from Mengo Hospital obtained in 2006. That his work involved receiving, treating and examining patients.

CW1 interpreted the Police Form (PF) 3 issued to the patient ( $\mathrm{C}$ ) by Gogonyo Police Station and said that it bore his own signature and stamp of Pallisa Hospital. That the form indicated that the complaint C had was in respect to assault. That the patient was examined on 15<sup>th</sup> May, 2013 and it was found that he sustained blunt soft tissue injury with bruising in the scrotum. That the injuries were eight days old. That he did not prescribe any medicine because he was already getting treatment from a private clinic which he advised him to continue using. That he classified the injuries as harm.

$\overline{4}$

The Medical report admitted with the consent of RC as $Exh C 2$ and $Exh C3$ respecively..

During cross-examination, CW1 clarified that he did not remember as to whether C was on PPF treatment. That PPF was an injectable drug which was an antibiotic. That C never went back for follow up or review. He confirmed that at the time he examined him, it was eight days after assault had occurred and he was still in pain.

During re-examination he clarified that when injuries are classified as harm, no permanent injuries are anticipated.

CW2, Akello Janet testified that C was her husband to whom she got married to in 2000. That in May 2013, she went to Gogonyo Police to report a fight she had with her co-wife called Ibinika Dorothy. That when the police went to arrest her, they never found her at home, so they instead arrested their husband. That and when her husband and the she (CW2) had remained at the Police Post police reached the Police Post, she saw the Officer in Charge pulling him by his testicles and took him inside his office. That she heard him making an alarm as if he was being beaten. That the Officer in Charge thereafter told her to go home. That she saw her husband on the next morning at the police post but he was moving with difficulty. That she went with him together with one Police officer to Gogonyo Health Centre III to get him treated.

During cross-examination CW2 said that when her husband was taken to the police there were many police officers but she never counted them to ascertain the number. That the name of the man who grabbed her husband's testicles was Jimmy who was also the Officer in Charge.

As noted earlier at the beginning of this decision, R's side never presented any defense witnesses to rebut C's claims made against them. Apart from crossexamining C and two witnesses they also never filed any written submissions to demonstrate their desire to defend this matter much as they had prayed to file and the prayer was granted for them to file written submissions within one month.

Accordingly, adopting the principle that was upheld in the case of GEORGE ASIIMWE VS ATTORNEY GENERAL HCCS No. 481/97, where court held that:

> The plaintiff's case was not controverted and it was be accepted as the truth.

The right of freedom from torture or cruel, inhuman or degrading treatment or punishment is guaranteed under International, Regional and National human rights instruments that Uganda has signed and ratified for the purpose of protecting human dignity.

For instance, Article 5 of the Universal Declaration on Human Rights (UDHR) of 1948, provides that:

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

And Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966, retaliates the position of the UDHR stating that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In addition, Article 1 (2) of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (in brief the UNCAT) of 1984 provides that:

> No exceptional circumstances whatsoever, whether a state of war, or a threat of war, internal political instability or any

other public emergency, may be invoked as a justification of torture.

Furthermore, Article 5 of the African Charter on Human and Peoples' Rights (ACHPR) of 1986 also provides that:

Human beings are inviolable, and therefore, respect for life and integrity of person should be upheld; and further that all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Article 24 of the 1995 Constitution of the Republic of Uganda 1995 also prohibits the violation of the above mentioned right, and specifically provides that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. And under Article 44(a) the Constitution makes the same right to be non-derogable under any circumstances, including the most extreme times of war or a state of emergency.

However, most of the above instruments do not offer an appropriate definition of torture that I could adopt in order to determine whether C's allegation falls within the classification of "torture," especially as the incident of alleged torture of C took place before Uganda enacted the Prohibition and Prevention of Torture Act of 2012, which provides a useful definition in this regard but which cannot be retrospectively applied to the incident that took place in 2010. However, the aforementioned UNCAT provides an appropriate definition that is safe for me to adopt in the instant complaint.

The UNCAT defines "torture" under Article 1, stating that "torture" is:

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 or 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 afore-cited definition comprises four important ingredients on which I shall base my assessment of the adduced evidence in order to determine whether C's right was indeed violated. The ingredients are:

- Whether the acts of assault inflicted severe pain or suffering on the victim, whether physical or mental; - Whether the acts were intentionally inflicted on the victim, irrespective of whether they were direct or indirect. - Whether the acts were carried out for the purpose of obtaining information, confession or punishing on the victim for the act he committed or intimidating him or coercing him for any reason based on discrimination; and - Whether the acts were carried out by or at the instigation or with the consent or acquiescence of a public official or any other person acting in an official capacity.

In addition, in the case of IRELAND VS UNITED KINGDOM, (1978), 2 EHRR **25**, the court differentiated "<u>torture</u>" from "<u>inhuman treatment or punishment</u>" 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 <u>degrading treatment</u> required <u>ill treatment</u> designed to <u>arouse in</u>

the victims the feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly, breaking their physical or moral resistance.

At this juncture therefore, I shall seek to establish whether or not C was indeed subjected to "torture" or whether his evidence only reveals the components of "cruel, inhuman or degrading treatment or punishment"; or the general violation as a whole as it is provided under Articles 24 and 44(a) of the Constitution of Uganda.

As I have already noted, C said that when he was arrested and taken to Gogonyo Police Post, the Officer in Charge grabbed him by his testicles and pulled him while taking him to his office on the allegation that he had aided his younger wife to escape from being arrested by the Police. He further asserted that he was slapped hard on the face, on both cheeks, and his head pushed on the wall and ground after which he was beaten with a baton all over his body for about one hour. That as a result of all these actions, he sustained injuries and suffered pain on his testicles for which he sought medical treatment. The foregoing evidence was corroborated by that adduced by CW2 who say the Officer in Charge pulling C by the testicles and that of CW1 who personally examined C and found that he actually sustained injuries and classified as harm. Furthermore, C in his evidence claimed that he was slapped on his face twice and beaten with a stick all over the body for about one hour. As CW2 witnessed, she was at the Police Post at the time C was taken to the Officer in charge's office. However she also mentioned that she heard him crying like he being beaten but she did not tell for how long the beating went on. First and foremost, it is probable that C was actually slapped and or beaten with a stick, but it would not take a duration of one hour and the result shows that the most effects were on his testicles. I must note that C may have made an exaggeration of other occurrences but maintain that the major effect of the actions of the Officer in Charge were on his testicles. This is so because the examination report would have highlighted the other effects of the beating on C.

It was therefore clear from C's evidence, that the assault that he was subjected to by the Officer in Charge of Gogonyo Police Post was serious and intense because it resulted into injuries on his testicles. As I have already mentioned, CW2 herself saw the Officer taking C by his testicles. The evidence adduced by the witnesses was not at all shaken during their cross-examination. It therefore remained credible and reliable.

Therefore, there is no doubt that the assault on C was all intended to punish him for aiding his younger wife from escaping from the police/ obstruction of Police on duty. The evidence that C and his witnesses adduced before the Tribunal therefore revealed that the beating that the RRU operatives meted out on C, resulted into very serious pain for him, to the extent that he had to seek medical treatment.

The difference between torture or cruel, inhuman has already been discussed in the case of Ireland Vs United Kingdom (supra). I find that the acts meted out on to the complainant reached a minimum level of severity but where not very severe as to amount to torture but rather to the violation of his right to freedom from cruel, inhuman and degrading treatment or punishment. It is therefore my well-considered opinion that C has satisfactorily proved that the actions of the Officer in Charge Gogonyo Police Post who assaulted him inflicted cruel, inhuman or degrading treatment or punishment on him as reflected by the evidence and the case of Ireland V. United Kingdom above.

Accordingly, I find that on a balance of probabilities, the aforementioned said Officer in Charge violated C's right of freedom from cruel, inhuman or degrading treatment or punishment, contrary to Articles 24 and 44(a) of the Constitution of Uganda.

Therefore, C's claim in respect of issue one succeeds.

## $$ Whether R (Attorney General) is liable for the violation.

I have already concluded that the Officer in Charge Gogonyo Police Post who violated C's right was a State Agent who was in the process of executing State duties in line with the provisions of the Constitution of Uganda and the Police Act Cap 303. Accordingly, under Article 119 (4) (c) of the 1995 Constitution, the Attorney General of Uganda is charged with the duty of representing the Government in any civil proceedings to which Government is a party. It is therefore proper that R should be held vicariously liable for the actions of the aforementioned State agents.

## Whether C is entitled to any remedies. $$

The Uganda Human Rights Commission is mandated under Article 53(2) (b) and( c) of the Constitution of the Republic of Uganda to order payment of compensation or any other legal remedy or redress if satisfied that there has been an infringement on the human right or freedom of any person.

Since I have already established and ruled that the aforementioned State agents violated C's right of freedom from torture, cruel, inhuman treatment or punishment, then C is entitled to compensation.

I am fully cognizant of the underlying principle in awarding compensation, which is to restore the victims to the position that they were in before being victimized. The compensation to C should therefore be adequate, effective and given to him as soon as possible.

I also take into account the case of **MATIYA BYABALEMA AND OTHERS VS.** UGANDA TRANSPORT COMPANY, SCCA, 10193, in which His Lordship Justice Odoki JSC stated that:

Courts out to assess the amount of damages taking into account the current value of the money in terms of what goods and services it can purchase out at present.

$\overline{11}$

With all the foregoing in mind, let me now determine the compensation to be given to C.

In assessing the quantum for the compensation for the violation of the aforementioned right, I am taking into account the following facts:

- (a) The nature of injuries that were sustained. - (b) The fact that this right is non derogable. - (c) Awards in previous cases that are similar to the instant case may provide some guidance. - (d) The value of money.

In the instant case, it was illustrated under the analysis of evidence that the injuries suffered did not cause long term effects. The effect of the torture in the above case I have just referred to were so severe compared to this present case. In fact, the latter case only contains a very small element compared to what the Complainant in the above case suffered. It was also noted when issue 1 was resolved, that C only suffered cruel, inhuman and degrading treatment or punishment. Therefore, I deem a sum of UGX 2,500,000/=. (Uganda shillings Two million five hundred thousand)

The Respondent is therefore ordered to pay to Complainant, a sum of UGX 2,500,000= (Uganda Shillings two million five hundred thousand shillings only) as general damages in compensation for the violation of his right of freedom from cruel and degrading treatment or punishment.

I therefore order as follows:

## ORDERS:-

1. The complaint is allowed wholly.

- R (Attorney General) is ordered to pay to C, Onyepa Stephen a total sum $\overline{2}$ . of UGX 2,500,000= (Uganda Shillings two million five hundred thousand only) for the violation of his right of freedom from cruel, inhuman and degrading treatment or punishment. - Each party shall bear their own costs. $3.$ - Either party not satisfied with the decision of the Tribunal may appeal to $4.$ the High Court of Uganda within thirty (30) days from the date of this decision. - So it is ordered.

DATED AT JINJA ON THIS ....................................

SHIFRAH LUKWAGO

## PRESIDING COMMISSIONER