Otim v Attorney General (Complaint No: UHRC/ SRT/01/2009) [2019] UGHRC 24 (5 August 2019)


# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT SOROTI ? COMPLAINT NO: UHRC/ SRT/01/2009**

**OTIM GEORGE COMPLAINANT And ATTORNEY GENERAL RESPONDENT**

### **BEFORE HON. COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA**

### **DECISION**

The Complainant (C), Otim George alleges that on 27lh December 2008, he was arrested by police men attached to Atiira Police Post. That because he attempted to run away after his arrest, the policemen chased him and after they had caught him, they beat him severely until the Officein-charge (O/C) of Atiira Police Post, who was also present, intervened and stopped the beating. That as he had sustained injuries, he sought compensation for the alleged violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

The Respondent (R), through their representative (RC) Topasho Juliet, denied liability and opted for putting up a defence.

#### **Issues**

The issues for resolution are as follows:

1. Whether C's right offreedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

- 2. Whether R is liable for the violation. - 3. Whether C is entitled to any remedy.

#### **Resolution of issues**

## **Issue 1; Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.**

C testified that on 27th December, 2008 at around 8:30 pm, he and Aonu Peter were arrested from Kasilo Trading Center by police men who were wearing uniform and coming from Atiira Police Post being commanded by the O/C of that Police Post. That at first, he suspected the arresting persons to be wrong people and therefore decided to ran away after the arrest. That he was chased and when he was caught, the policeman called Engulu kicked him on the legs and he fell down. That Engulu hit him on the head with a gun butt and he started bleeding. That he also kicked him all over his body and when he was returned to where the other police men where, the O/C intervened and said that they had arrested a wrong person.

C testified further that the O/C instructed him to go home and report to Atiira Police Post the next day, which he did. That Engulu took him to a clinic and his wound was cleaned and he also received an injection. That after three days however, the wound worsened and he went to Serere Health Center IV where it was stitched.

During cross-examination, C reiterated that he was arrested by four police men but at the time of his arrest, he did not know they were police men. That he realized that they were police men after he had been beaten and returned to where the O/C was. That he was also able to identify them properly because there was moonlight. That he was arrested with Aonu and Ebol but for the latter two, they did not run away after the arrest. C further reiterated having been beaten by only Engulu who was wearing police uniform and armed with a gun. That he was beaten because he had run away. That the beating was witnessed by both Aonu and Ebol who were standing about 100 meters away. That they were able to see him being beaten because there was moonlight. That he received treatment from two places: a clinic in Atiira where he was never given any document, and also from Serere Health Center IV.

C's first witness (CW1), Aonu Peter testified that on a date and month he could not recall but in 2009, himselftogether with C, Ekwelu John and many others were at a drinking joint and all of a sudden, someone with a gun appeared and ordered them to sit down. That C, Ekewelu John and Aramu Martin ran away but they were chased and C was caught and beaten. That they went to rescue him and that is when he saw clearly the other police men. That the LC1 Chairman of Alengo Village came and identified the police men as those from Atiira Police Post. That the O/C wanted to take C to hospital but C was too weak. That he, himself (CW1) took C to Atiira Police Post the next morning and he was taken to a clinic where the wound on the head was dressed. That he was also given an injection, that he also had other bruises on the hands and knees.

CW1 testified further that C later on requested him (CW1) to take him to a hospital, and they went to Serere Health Center IV where C's wound was stitched. That C kept returning to the same Health Center as an outpatient for treatment. That the Uganda Police Force did not help him to meet the costs involved at Serere Health Center IV.

During cross-examination, CW1 reiterated that he was present when the incident took place, stressing that it was at around 9:00 pm and at that time, he did not identify the police men clearly. That he confirmed that C was beaten by a police man since the LC1 Chairman identified all the police men who arrested and beat C. He also clarified that he did not personally see C being beaten but he heard him crying, and that he received treatment the next day. That although the people who were around ran away at the time C was beaten, he personally just moved a short distance but stayed around the scene.

CW2, Epejon Alex testified that in 2008 on a date he could not recall but at around 9:00 pm and while he was at his shop in Alengo Trading Center, he heard someone ordering the people outside the shop to sit down. That some of the people ran away and he also closed his shop and ran, too. That he neither saw the person who made the order nor witnessed C being arrested and beaten.

During cross-examination, CW2 reiterated that as it was at around 9:00 pm, he did not see clearly the person who beat C and he did not recognize the people who came to the Trading Center and ordered people to sit down.

When he was re-examined, CW2 clarified that after about 30 minutes, he returned to the Trading Center and he was able then to recognize the policemen who arrested and beat C.

C's expert witness (CW3), Dr. Otim Joseph James who was working with Serere Health Center IV as a Medical Officer, said that he had a Bachelor's Degree in Medicine and Bachelor's of Surgery obtained from Kampala International University in 2001. That he had work experience of 5 years. That he had worked in Gulu Regional Referral Hospital in 2014, Apapai Health Center IV in 2015 and was working at Serere Health Center IV at the time he testified.

He identified the medical form which was in C's names and which had been sent to Serere Health Center IV by Atiira Police Post on 28th December, 2008 requesting then to examine C. That upon examination, C was found with a cut on the head measuring 3cm by 1cm by 0.6 cm. That his head was swollen and tender, and his two cheeks were also swollen. That he also had bruises on the face and chin, and tenderness on both shoulders and the back. That the remarks made by the examining medical personnel were that the injuries were resulting from blunt trauma, and the classification made was bodily harm. That the document was signed by Moses Olama on 29th December 2008, and certified on 14th February, 2013. CW3 clarified that he knew Olama's signature since he had worked with him for about three years, and he had been appointed as the Medical Supervisor of Serere District.

That in his opinion, C's injuries would heal but they would leave scars on him since they were caused by a blunt object.

During cross-examination, CW3 reiterated that C was examined by Olama Moses who was then a Medical Supervisor, and that he holds a Diploma in Pharmacy. CW3 pointed out further that dispensers were allowed to examine patients because they had the knowledge enabling them to do so. That they were also allowed to do so due to under staffing of the Health Units. CW3 reiterated further that C was examined from Serere Health Center IV on 29lh December, 2008 and at that time, he was personally not working at that unit. He confirmed that a Health Center IV is headed by a Medical Officer, that although C's medical form had to be filled by a Medical Officer, a Clinical Officer could do so due to understaffing. That on the form, there was no evidence of treatment having been given to C but the form nevertheless, indicated both minor and major injuries like those that were seen on the head. That he did not know if C had received further medication, and that bodily harm meant injuries that may not cause permanent disability

to the patient. He also pointed out that the examining officer did not write his name but only signed the document.

During re-examination, CW3 confirmed Olama Moses' profession as being a Dispenser.

The medical form from Serere Health Center IV was admitted as C's first exhibit despite the objection that was raised by RC and which the tribunal promised to consider seriously at the time of evaluating the evidence adduced by the parties.

In his submissions, RC pointed out that C failed to prove that he was tortured because the medical form he tendered in did not classify his injuries. And also that no X-ray was performed to show C's injuries, and the person who examined C was not a Medical Officer but just a Dispenser who was not competent enough to examine a patient thus, rendering his report inadmissible as evidence in court. He emphasized the point that to prove torture, medical evidence by a doctor had to be adduced. RC submitted further that C showed no severe pain as having been inflicted on him at the hands of R's agents in order to obtain a confession or admission of a crime. He therefore concluded by saying that R was not liable since the evidence adduced did not show that C was arrested by police men in the course oftheir duty.

Having had time to evaluate seriously the evidence that was adduced by the parties, I must now agree with RC's submission about the author of the said medical document, a Dispenser as not being qualified to examine and treat persons, although he might have had some general knowledge and work experience enabling him to carry out some examination under the circumstances that were described by CW3. I therefore take the position that inspite of those challenges faced by Health facilities in Uganda and specifically of under staffing, such circumstances still do not validate a document authored by an un qualified person. Although Dr. Otim Joseph was a qualified person to interpret the document and give his opinion to the Tribunal, the said medical document still remained void abinitio and therefore, I will dispense away with the said evidence of Dr. Otim and the medical document which was tendered in as C's exhibit.

RC's objection in this regard is therefore sustained.

Although this medical evidence that was adduced to demonstrate the gravity of C's injuries has not been dispensed with, C's claim of having been assaulted, injured and his aforementioned

right having been violated to this extent and in this way, is still sufficiently supported by the evidence that he himself adduced and as it was corroborated by his other two witnesses and particularly, CW1 who testified as an eye-witness in this regard. I shall elaborate further and also pronounce myself on this assessment presently.

Violation of peoples' right of freedom from torture or cruel, inhuman or degrading treatment or punishment is prohibited under the provisions of some of the human rights instruments at the International and Regional (African) levels that Uganda has ratified. For instance, such prohibition is provided for under Article 5 of the Universal Declaration of Human Rights (UDHR) of 1948, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1996, and by the entire Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in short, known as the CAT) of 1984, as well as Article 5 of the African Charter on Human and Peoples' Rights (ACHPR) of 1981.

The Constitution of Uganda of 1995, under Article 24 also totally prohibits the same violation under consideration now. Further still, under Article 44 the Constitution provides for total prohibition of derogation ofthe same right.

However, the laws of Uganda did not define the term torture by the time the alleged assault on C is said to have taken place. In this regard therefore, I shall make use of the definition provided under Article <sup>1</sup> ofthe aforementioned CAT, which states that torture is:

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 him 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 from, inherent in or incidental to lawful sanctions. The aforementioned CAT definition comprises of four important ingredients or contours, which also inform the International conceptualization oftorture. These are:

- That the action(s) of the alleged culprit(s) has/have caused the affected victim(s) severe pain and suffering, whether physical or mental. - That the pain and suffering caused by the action(s) ofthe culprit(s) has been intentionally inflicted on the victim(s). - That the purpose of the action(s) has been to obtain information or a confession, or for punishment, intimidation or coercion, or for any reason based on discriminating the affected victim(s); and - That the action(s) that has/have inflicted pain and suffering has or have been carried out by, or at the instigation of, or with the consent or acquiescence of, a public official or another person acting in an official capacity.

I have therefore looked for proof of the aforementioned four ingredients in the evidence I have evaluated before making my decision.

I have found C's evidence to have been well and effectively corroborated by the evidence that was adduced by his witnesses, and especially by CW1 who testified as an eye witness to the assault that was meted out upon C and the injuries he suffered and which CW1 saw when they were still fresh. This evidence has therefore clearly revealed that C was indeed beaten on the head and on other parts of his body, and that he sustained a wound on the head and bruises on the face, cheeks, chin, back and shoulder.

It is therefore clear that all the assault that was meted out upon C must have caused him severe pain and suffering, both physically and psychologically.

The evaluated evidence has also clearly shown and convinced me that the assault on C was intentionally inflicted on him by the said police men who were acting under the command ofthe O/C. It is also clear that the assault on C was carried out for the purpose of punishing him for running away after being arrested. The evidence has also convinced me to believe that the assault on C was indeed carried out by police men who were wearing police uniform and carrying at least one gun. And that the policemen at that time were carrying out their official duty of arresting C. The fact that C was told to go to Atiira Police Post by the O/C and he was then taken to a clinic by a policeman, also confirms the fact that the said policemen and the O/C were all individually and severally carrying out their official duties when they arrested and assaulted C.

I am therefore convinced that there is a high probability that C did indeed suffer severe injuries after his arrest and being assaulted by the said police men.

The other major objection that was raised by RC during cross-examination was that both CW1 and CW2 did not see C being beaten, and that C had not been beaten by police men. However, CW1 testified that he heard C crying after he had been chased by one ofthe police men, and also emphatically added that the LC1 Chairman had confirmed to them that the arresting police men were from Atiira Police Post.

Since I dispensed away with the aforementioned medical evidence, I will make reference to the case of **FRED KAINAMURA AND ANOTHER vs ATTORNEY GENERAL,** 1994, KALR 92, in which Justice Okello held as follows:

> It is not a requirement ofthe law that every allegation of assault must be proved by medical evidence. If a witness says "he boxed me and kicked me", then that is the evidence of assault. You do not need medical evidence to prove that he was boxed and kicked. Medical evidence helps to prove the gravity ofthe assault.

The same principle is also stated in the case of **BLANDINA NSHAKIIRA vs KAMPALA CITY COUNCIL,** HCCS (248/02 (24/5/04 AT KAMPALA) in which Justice Yorokam Bamwine also held as follows:

> A person can testify in court as to her injuries without the aid of an expert medical witness as long as the party describes the injuries clearly. While it is prudent practice to seek expert opinion ofthe doctor on the nature ofsuch injuries, it by no means implies that absence of such evidence would necessarily be fatal to the plaintiffs case. It must

> > 8

all depend on available evidence and its quality. Medical evidence is of course helpful that it is from an expert. In its absence, other evidence may suffice.

I therefore find on the balance of probabilities that the aforementioned State agents violated C's right ofprotection from torture or cruel, inhuman or degrading treatment or punishment.

The issue I have been considering is therefore resolved in the affirmative.

## **Issue 2: Whether the R is liable for the two violations.**

Article 119 of**the Constitution of Uganda** provides for the functions ofthe Attorney General to include among others, to represent the Government of Uganda in courts or any other legal proceedings to which the Government is a party. For this reason therefore, the Attorney General was rightly identified and summoned as the Respondent in this case.

I have already concluded and ruled that the police men of Atiira Police Post who violated C's right, carried out their wrongful and illegal actions while they were in the process of carrying out their official duties. I have therefore decided to go by the principle of law that was well captured in the case of **MUWONGE vs ATTORNEY GENERAL** (1967), (EA) 17, where it is stated that "once the actions or omissions of the servant have been proved to have been part of the process ofthe servant's duty for which he was employed, then they render the master liable, even though the same actions or omissions were carried out contrary to the orders or instructions of the master, and even if the servant acted deliberately, wantonly, criminally, negligently, or contrary to the specific instructions or orders ofthe master, or for his or her own benefit, gain or advantage, as long as what the servant carried out or did was merely a manner of carrying out or doing what that servant was or is employed to do or to carry out."

It therefore follows that I must now find and hold the Attorney General to be vicariously liable for the violation ofC's right as already established and ruled in the foregoing discussion on issue number 1.

## **Issue 3: Whether C is entitled to any remedy.**

Article 50 (1) of the Constitution provides for effective remedies to be ordered by competent national tribunals for victims whose fundamental rights guaranteed for them by the same Constitution have been violated. In addition to this, under Article 53 (2) the Constitution also gives powers to the Uganda Human Rights Commission, and therefore to this Tribunal, to order payment of compensation or any other remedy or redress, where it has been satisfied that there has been an infringement on anybody's human right or freedom.

In **KISEMBO MILTON VS ATTORNEY GENERAL FPT/005/2004** where the complainant was beaten all over the body, pushed against the wall and punched heavily by policemen at Budibugyo Police Station the Presiding Commissioner C. K. Karusoke awarded the complainant UGX 3,000,000 (Three million Uganda Shillings) as compensation for violation of his right of freedom from torture or cruel, inhuman or degrading acts.

I have been convinced that the extent of the injuries that C suffered in this case is significantly greater than the extent ofthe injuries that were suffered by the complainant in the cited precedent case. In addition, considering the time lag since 2009 when this complaint was received to date, which is about 10 years ago, and the status ofthe inflation in our country today, C in the instant case deserves to be awarded a higher quantum ofmoney for compensation.

I accordingly award UGX 7,500,000 (Seven million, five hundred thousand Uganda Shillings) to C as full and final compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

I am therefore ordering as follows:

## **ORDERS**

- 1. The complaint is allowed. - 2. R, the Attorney General is ordered to pay to C, Otim George a total of UGX 7,500,000/= (Shillings seven million five hundred thousand shillings only) as general damages for

violation ofhis right offreedom from torture or cruel, inhuman or degrading treatment or punishment.

- 3. Interest at the rate of 10% per annum to be paid on the total amount of UGX 7500,000/= (Shillings Seven million five hundred thousand shilligs only) calculated from the date of this decision until payment in full. - 4. Each party to bear their own costs. - 5. Either party may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision if not satisfied with the decision ofthis Tribunal.

So it is Ordered.

**DATED AT SOROTI ON THIS DAY OF SIGNED BY:**

**DR. KATEBALIRWE AMOOTI WA IRUMBA**

**PRESIDING COMMISSIONER**