Opedo v Attorney General (UHRC/SRT/02/2006) [2017] UGHRC 18 (14 November 2017)

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/02/2006 OPEDO JAMES I::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

### **-AND-**

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

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

#### **DECISION**

The Complainant Opedo James a resident of Otoba Village, Laban County, Pingire Sub County in Soroti District alleges that at 6:00 am on the 12th November 2005 he was arrested by one Odele a police officer attached to Mulondo Police post on allegations of being in illegal possession of a gun. That during his arrest he was tied *"Kandoya"* style with a rubber string and taken to Mulondo Police Post from where he was detained until midday when he was released after public intervention. He further alleges that he feels a lot of pain in the chest and his hands have become paralyzed and that he can no longer do anything at all by himself. The Complainant prayed for compensation for the acts of torture meted upon him.

The Respondent represented by Ms. Juliet Topacho denied the allegations.

#### **ISSUES:**

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

- I. Whether the Complainant's right to freedom from torture, cruel and degrading inhuman or degrading treatment was violated by the respondent's agents/servants? - II. Whether the complainant is entitled to any remedies?

Before I resolve the issues I wish to note that this matter was partly heard by former Commissioner Violet Akurut Adome. The matter came up for 1st time hearing on the 9th May 2014 before former Commissioner Violet Akurut Adome at which the complainant appeared and the Respondent was represented by Counsel Juliet Topacho. The complainant gave evidence in chief. The matter came up for further hearing on the 15th October 2014 and **CW 1 Ikodeu Hellen Beatrice** gave evidence in chief. On the 25th April 2016 examination in chief and cross examination was carried out on **Obangui Eric C W 2.**

The matter came up for further hearing before me on the 27th June 2016, examination in chief and cross examination was carried out on **Etiu John Moses CW 3** and on the 31st October 2016 CW 3 was cross examined. This was the close of the Complainant's case. On the 20th February 2017 the matter came up for defence case. On the 16th May 2017 Respondent Counsel Ms Tapacho Juliet prayed for three weeks to file written submissions but to date they have not been filed. The Tribunal has decided to go and ahead and make a decision based on the evidence on record.

Section 101 of the Evidence Act places a general burden of proof on the party that seeks judgment as to any legal right dependant on the existence of alleged facts. It is trite law that in civil proceedings, such as the present suit, the standard of proof on such a party would be on a balance of probabilities. The onus therefore lay with the Complainant to prove his claim against the Respondent's agents on a balance of probabilities **see; CHOGM Tour Agents 2007 [U] Ltd vs Attorney General HCCS No. 18 of 2008; Chandia Paul and Attorney General UHRC/FP/37/2006; Nsekambabaye Aloysius and Attorney General UHRC/MBA/087/2006; Apollo Mande and Attorney General; UHRC/495/2001.**

Bearing this in mind 1 will now go ahead and resolve the issues raised.

As to the first issue the Complainant Opedo James testified that at around 6:00 am on a day he could not recall but in 2006 he was arrested by two police men Odele and Adai from Labor Trading Centre. During his arrest, he was beaten on the back using buttons and gun butts by the said officers while they demanded a gun from him which he had alleged kept in a sack. He was later tied *"kandoya"* style with a bicycle rubber and taken to Mulongo Police Post where he was detained with his father until 12:00 pm. By the time his hands were untied by the police officers, they had become paralyzed. He was later released on police bond after paying UGX 150, 000/=. Upon reaching home he sought for treatment and later reported the matter to the Commission. He stated that as a result of the injuries, he can longer carry out domestic work since his hands usually get paralyzed. Upon cross examination, the Complainant stated that the said police officers were dressed in uniform and he was arrested on allegation of being in possession of an illegal gun. He has not gone back to see the physiotherapist as advised.

**Ikodeu Hellen Beatrice [CWI]** testified that she was the mother to the Complainant. On a date she could not recall in 2005 while at Aaropoo Trading Centre she was informed that the Complainant had been arrested and taken to Mulondo Police Post. At around 10:00 am, she went to Mulondo Police post and found the Complainant locked inside the cell which had other suspects who were crying because they had also been tied *"kandoya"* style. She later realized that it was because they had been tied *"Kandoya"*style badly. The Complainant was brought out of the cells at around 1:00pm. She had brought some food for him but he could not use his hands for eating since they had become paralyzed. The Complainant was later released after she had paid UGX 200,000/ =. After the Complainant had been released she went with him to Akorale Clinic in Labwor. She further stated that although the Complainant told her that he had been beaten, she only saw marks of ropes on his body and his skin had also peeled off. Upon release, the Complainant could not lift his hands or bathe on his own because he was in too much pain. The Complainant had been suspected of being in possession of an illegal gun. Upon cross examination, she confirmed that she did not see the Complainant being arrested, beaten and tied *kandoya* but she found him already tied up. She did not take him for treatment but the Complainant's brother Ekwaku Pius took him for treatment. The Complainant's hands remained paralyzed for about two years and the Complainant cannot lift heavy things.

**CW 2, Obangu Eric,** testified that he was a medical officer working with Soroti Regional Hospital and had been in practice for four years. He stated that the Complainant was examined on the 11th June 2006 at Soroti Referral Hospital; he complained of injuries on both lower limbs and had paralysis as a result of left rectum and anal nerves. Upon examination, he had bilateral triple paralysis affecting three out of the four limbs. The radio nerve was not responsive to stimulation as a result of the damage and the response in the long muscles in the right hand was minimal. Upon cross examination, CW 2 stated that the medical reports were valid but he could not tell who examined the Complainant. He further stated that the Complainant could recover and carry out normal activities such as farming.

**CW 3, Etiu John Moses,** testified that he was the area Councilor and in 2005 he received some verbal information that some people had been arrested and taken to Mulondo Police Post. He went to the Police Post and was able to see the persons in detention; they were in a miserable state since they had been badly beaten. They had swollen backs and bruised elbows. He found them being beaten at the police post. Upon cross examination, he stated that he did not see the Complainant being beaten but saw the bruises and swellings on the hands. That he visited the Complainant once at Mulondo police post after 2 days after he [the complainant] had been arrested.

The prohibition of torture is embodied in several international human rights instruments, notably the International Covenant on Civil and Political Rights, the Convention against Torture and the African Charter on Human and Peoples' Rights [Article 5]. These instruments share one important characteristic; they are concerned with the right to be free from torture as a human right to be guaranteed by the State and, accordingly, there is no justification for torture. The Republic of Uganda 1995 Article 24 states that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment. This right is no derogable under Article 44 of the Constitution of the Republic of Uganda **(John Kashagure and Attorney General UHRC/MBA/081/2004; Byamukama Akim and Attorney General UHRC/CTRZ161/2004].**

The European Court of Human Rights in the case **of Akdeniz vs Turkey [Application no. 25165/94]** held that detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. No explanation was provided by the Respondent's agents as to how the complainant could have sustained the injuries.

A close analysis of the evidence on record, particularly the evidence of CW1 and Exhibit I indicates that the Complainant was arrested together with his father the Late Epangu George William and detained at Mulondo Police post. CW 1 and CW 3 did not witness the Complainant's arrest but found him in detention at Mulondo Police post with his hands tied *"kandoya"* style. His hands were paralyzed that he could not feed on his own, he had swollen and bruised elbows. These actions of the police officer's tying the complainant's hands *kandoya* style clearly caused him serious physical suffering which amounted to acts of physical torture.

On a balance of probabilities the complainant's right to freedom from all forms of torture as protected under Articles 24 and 44 of the Constitution of the Republic of Uganda was violated by the respondent's agents.

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. It is irrelevant whether the acts done by the police officers were unjustified or unauthorized as long as they did such acts in the course of their employment **[Bashishana Francis and Attorney General UHRC/MBA/117/2005; Chandia Paul and Attorney General UHRC/FP/37/2006].** The evidence on record is to the effect that the arrest and detention of the complainant was carried out by Police officers attached to Mulondo Police Post acting in the course and within the scope of their employment. The defendant adduced no evidence to rebut this. The Complainant's right to freedom from torture, cruel and degrading inhuman or degrading treatment was violated by the respondent's servants and the Respondent is therefore liable.

The answer to the first issue is in the affirmative.

The second issue is whether there is any remedy available to the Complainant?

Having answered issues I in the affirmative, the Complainant is entitled to a remedy the Tribunal deems fit and this may be in the form of payment of compensation or any other legal redress or remedy **[see Article** 8 **Universal Declaration of Human Rights; Article 53 [2] [b] and [c] of the Constitution of the Republic of Uganda 1995; UHRC/JJA/764/2006). Kiruta Richard S Munyazikwiye Francis vs Attorney General UHRC/MBA/079/2007; Omoding Joseph and Attorney General UHRC/SFT/208/2005; Kones Mohammed and Attorney General**

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, cruel and degrading inhuman or degrading treatment, the Tribunal has taken into consideration; 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 Iwolit Dismass and Attorney General UHRC/J/054/2003; Chandia Paul and Attorney General UHRC/FP/037/2006].**

In this case, the Complainant's hands were tied *"kandoyd"* style and by the time they were untied they were paralyzed and could not hold anything. The effect of paralysis continued for a long time. I therefore deem a figure of UGX 8,000,000/= [Eight Million Uganda Shillings] is adequate compensation for the violation of the Complainant's right his right to freedom from torture, cruel and degrading inhuman or degrading treatment. I so award.

## **ORDERS**

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the Complainant Opedo James a sum of **UGX 8, 000, 000/= [Uganda Shillings eight Million shillings]** only as compensation for the violation of his right to freedom from torture, cruel and degrading inhuman or degrading treatment. - 3. The said sum shall carry interest at 10 % per annum from the date of this decision till 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 SOROTI this day of ............. 2017.

**MEDDIE B. MULUMBA PRESIDING COMMISSIONER**