Otim v Attorney General (Complaint No.UHRC/ SRT/84/2008) [2017] UGHRC 16 (7 December 2017)

Full Case Text

![](_page_0_Picture_0.jpeg)

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

# HOLDEN AT SOROTI

# COMPLAINT NO. UHRC/ SRT/84/2008

## OTIM JAMES I::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

AND

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

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

#### DECISION

The Complainant (C), Otim James alleges that on 16th April 2007, while on his way home riding a bicycle, he met two Arrow Boys/Soldiers who included a one Okiror the Officer- in- Charge of Totolim Detach, who were also riding bicycles. That Okiror knocked his bicycle and also beat him severely and as a result, he sustained injuries.

The Respondent (R) denied the allegation.

### Issues for Determination

- I. Whether *Cs* right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - II. Whether R (Attorney General) is liable for the alleged violation. - III. Whether C is entitled to any remedy.

#### Tribunal Hearings

The first tribunal hearing was held on 23rd August 2016 in which C was absent and R was duly represented by Respondent Counsel (RC) Juliet Topacho. Counsel for the Commission (CC) informed the Tribunal that C had been summoned but was unable to attend because he was sitting examinations. The matter was therefore adjourned.

The Second hearing session was held on 22nd November, 2016 with both parties in attendance. R was once again represented by Ms. Juliet Topacho. C presented his case and was cross examined by RC. The matter was then adjourned for further hearing.

The third hearing session was held on 14th February, 2017. Both parties were present and this time round R was represented by Mr. Eric Lumbe. The C's witnesses testified and were crossexamined by RC. Thereafter the matter was adjourned for defense.

The fourth hearing session was held on 9th May, 2017. C was present and so were the R's representatives Mr. Eric Lumbe and Ms. Deborah Masawi. Although the matter had come up for defence, hearing could not proceed because the defence witnesses had not been secured by R and so, the matter was adjourned.

I note that the R did not present any defence in this matter but filed a written submissions Nonetheless, this did not shift the burden of proof from C. The latter retained the duty to prove his case against R to the satisfaction of the Tribunal on a balance of probabilities. This is an evidential requirement provided for under the Evidence Act Cap 6, Laws of Uganda; especially sections 101(1) and 102 which read that "Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that the facts exist;" and "the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

Resolution of issues.

### Issue 1: Whether C's right to freedom from torture or cruel, inhuman or degrading

### treatment or punishment was violated by State agents.

The right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected under Article 24 of the Constitution of the Republic of Uganda, 1995 as amended. This article provides that "no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment". Article 44(a) of the Constitution also prohibits the derogation of this right.

In addition, Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1966 and articles 4 and 5 of the African Charter on Human and Peoples' Rights (ACHPR), 1986 also prohibit torture or cruel, inhuman or degrading treatment or punishment"

The above provisions illustrate the extent to which the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected, and the special protection that is to be extended to an individual in the event that one is found to be in contravention with the law.

At the time the alleged violation of C's right took place there was no domestic legislation describing what torture entails. However, since Uganda signed and ratified the United Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the definition of torture given under Article 1 of this Act is applicable in this decision under the said Article is defined as:

"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 only from, inherent in or incidental to lawful sanctions."

In Fred Tumuramye Vs. Gerald Bwete and Others, UHRC NO. 264/1999, Commissioner JM Aliro Omara spelt out the central elements of torture to include:-

- a. An act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person, - b. The act inflicted for the purpose such obtaining information or a confession, punishment or coercion or for any reason based on discrimination, - c. The act is inflicted by or at the instigation of or with the consent or acquisance of a public official or other person acting in an official capacity.

Accordingly, in order to determine whether the acts committed against C constituted "torture," I need to take into account the afore-cited definition of torture as provided under Article 1 of the UNCAT and its central elements summarized above. I shall therefore relate the evidence presented to the law while taking into consideration the aforementioned definition of torture and its central elements.

C, Otim James testified that on 16th April 2007, he was sent to Kumi Town by his father, one Francis Otuje to pick his sister Lucy Akiror who was returning from school. That while he was going back home at about 3:00pm, he met a one Okanya Martin, a village mate who requested him to take for him his bed. That he was also carrying firewood because he had been instructed by his parents to take some. That at about 6:00pm, he met two Arrow Boys attached to Totolim Detach and he rang the bicycle bell for them to give him way. That since they did not, he stopped and got off the bicycle. That a one Okiror, the Officer in Charge of the detach, knocked his bicycle carrying firewood and he(Okiror) fell on one side of the road and he (Otim) fell on the another side. That Okiror then got up and started kicking him while he was lying down. That he also got a stick from the firewood and started beating him. That as a result, he started bleeding from the bruises he sustained on his neck, shoulders, arms and legs. That Okiror then

asked him to give him money and when he asked back why he was asking for it, Okori cocked his gun and said that C was bragging so he was going to kill him. That when C tried to stand up, Okiror the beat him and that is when his friend, Okanya Martin arrived at the scene and was told that C was being beaten because he had knocked the Officer- in- Charge. That when the Arrow Boys left, C also went home and his mother gave him first aid. That he reported the case to the Local Council III Chairperson of his area and to the Sub -County Chief who referred him to the Commission. That he also went for treatment at Ongino Health Center.

During cross -examination, Cstated that the Arrow Boys were not well known to him. That he was told by Okanya Martin who they were after the day of the beating. That he was advised by his father to report the matter to the Sub- County Headquarters where there was a police unit. That the LC III Chairperson recorded his statement and no one else witnessed the beating except Okanya Martin who found the Arrow Boys beating him also and stopped them. That the Arrow Boys were wearing their uniforms and riding bicycles going to Totolim. That he sustained injuries from which he had, however fully recovered save for his wrist in which he wsometimes dells pain.

CW1, Opolot Charles who Expert witness testified as he was a Clinical Officer at Ongino Health Center III, Kumi District Local Government and held a Diploma in Clinical Medicine and Community Health. He stated further that he did not treat C himself but had been working with the facility since 2010.

He therefore stated that on 17th April 2007, the C was diagnosed with general body pain following an assault. That he had multiple cane marks on the neck and buttocks as well as bruises on the right shoulder, left ear and the tongue. That he was on treatment (PPF Injections) for 5 days. That on 24th April 2007, he went back to the facility complaining of pain in the ears and he was prescribed amoxyline tablets for 5 days and diclofenac for 3 days. That the injuries sustained were soft tissue injuries classified as "harm". That the soft tissue injuries affect the muscles and underlying skin, and they arise when force is applied on the skin either by hitting with a stick or stone. That the patient was likely to recover although he would remain with scars.

The certified copy of the medical examination report from Ongino Health Center III dated 23rd April 2007 was admitted and marked Exhibit 1(CX1), as scientific proof that C had been subjected to torture.

During cross -examination, the expert witness stated that he was not the one who had carried out the examination, and that the cause of injury C's injuries was not indicated. He further stated that an accident could also cause soft tissue injuries but in the medical history, the cause of injury had clearly been identified as the assault that C had suffered.

CW2, Okanya Martin testified saying that he knew C, Otim James as a neighbor. That on 16th April 2017, at about 3:00pm, he met Otim in Kumi Town and he had bought a bed. That he requested him to take for him his bed on his bicycle and he accepted. That he was supposed to go with him but Otim went ahead of him. That when he was going home and had reached near to the Arrow Boys Barracks, at around 6:00pm or 6:30pm, he found Otim being beaten by Arrow Boys from Soroti. That he knew one of them called Okirir who was the Officer- in -Charge of Totolim barracks. That they were 2 Arrow Boys and they were beating Otim using sticks. That when he asked them why they were beating him, he was also beaten using canes and toldthat he had no right to ask questions. That the Arrow Boys said that the firewood Otim was carrying had scratched Okiror. That since Otim had already delivered the bed, he was now carrying only firewood and the Arrow Boys were forcing him to carry both the bicycle and firewood and because he could not manage to do so, he was still lying down. That he was dirty and was also bleeding from around the neck and left arm, and the rest of the body was blood stained. That it was him that asked the Arrow Boys to stop beating Otim and they did. That after about 10 minutes, the Arrow Boys went away and they also went home.

During cross-examination, the witness stated that the place where C was beaten from was far from his home, and that he saw him being beaten by the two Arrow Boys. That they stopped beating him when he asked what wrong C had committed, and Okiror the Officer -in- Chargetold his colleague to also beat him (Okanya). That the Arrow Boys told him that they met Otim on the way and his firewood scratched Okiror. That he talked to Otim and he gave him the same reason. That Otim further told him that, he had not seen or felt that the firewood had scratched Okiror because he would have felt the bicycle shaking. That he did not see Otim after the beating. That Otim was studying but had told him that he was feeling pain and was undergoing treatment at Atutur Hospital.

RC filed a written submission in which he stated that the evidence adduced by C showed that this complaint did not fall under the jurisdiction of the Uganda Human Rights Commission Tribunal but under Courts of Law. RC further submitted that for one to lodge a complaint of "torture" before the Uganda Human Rights Commission, he or she must satisfy the condition that injury or pain was inflicted on him in order to obtain information from him or to secure a confession from him or her. Counsel further submitted that the evidence adduced by the C did not show that C was tortured in order to obtain a confession or for him to admit to a crime, or that severe pain was inflicted on C.

I do not agree with RC'S submission on the issue that the complaint was wrongly brought to the Commission and therefore, the Commission did not have the jurisdiction to entertain the same. Article 50 (1) of the Constitution of the Republic of Uganda 1995, as amended reads that:

"any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

# Article 52(1) (a) of the Constitution further reads that:

"The Commission shall investigate, at its own initiative or on a complaint made by any person or group of persons against the violation of any human right."

Also, by virtue of the powers vested in It under Article 53(1), the Commission has jurisdiction on matters that may be thought proper to be taken on.

By virtue of the fact that human rights are inherent and have to be promoted and protected by the state and /or its agents like all its security agencies (see Article 221 of the Constitution), the Uganda Human Rights Commission had the mandate to entertain this matter. RC may have failed to draw a distinction between "torture" *and ordinary assault thus, confusing the of torture* with assault it provided for under Sections 235-236 of the Penal Code Act Cap 120, Laws of Uganda, especially as the medical expert witness state that the cause of C's injuries was an "assault." One needed to clearly differentiate between torture and ordinary assault and also to interrogate the evidence adduced by C to determine whether the assault he had alleged by suffering had reached the gravity of severity where torture occurs.

As it was earlier noted, C stated in his testimony that he reported his complaint to the Local Council III Chairperson and to the Police Unit at the Sub -County Headquarters and the only remedy he could obtain from there was a referral to the Commission. Therefore if it was indeed an assault case, the Police would have handled the matter and forwarded it to Courts of Law for determination but given the obtaining circumstances, the Commission was seen to be best placed to entertain it.

I wish to also note that the purpose of promoting and protecting human rights is to ensure that the weak or the underprivileged in society are protected against powerful individuals or unjust structures. It is also to enable the weak obtain remedy once their rights are violated. Otherwise, if everyone was able to defend one's self, there would be no need for institutions like the Uganda Human Rights Commission.

Furthermore, I do not agree with RC when he submits that C did not satisfy the condition that the injury or pain inflicted on him was to obtain information from him or to secure a confession or to admit to a crime, for the beating to amount to torture. Although C did not expressly state that he was beaten for this or that reason, it is inferred from his evidence that he was beaten for allegedly knocking the Officer -in- Charge, a one Okiror, with his bicycle and firewood wherein he stated that; "while I was going home at about 6:00pm carrying firewood on my bicycle, I met 2 Arrow Boys. I rang the bell for them to give me way but they did not. I got off the bicycle and the Officer in Charge one Okiror came and knocked my firewood with his bicycle

and he fell..." This evidence was corroborated by CWI, Okanya Martin who found C on the ground and the Arrow Boys beating him. That upon asking why C was being beaten, one of the Arrow Boys said that the firewood Otim was carrying on his bicycle had scratched Okiror. This evidence adduced by Okanya Martin was maintained during cross- examination. The purpose of the beating may not have been to obtain a confession perse but it was for the purpose of punishing C for causing his firewood to scratch and throw Okiror down which. This therefore fulfills one of the central elements of torture, which states that the act perpetrated against the victim of assault must be committed) "for the purpose such as obtaining information or a confession, punishment or coercion or for any reason based on discrimination".

I note further that RC did not fully satisfy himself with the whole definition of torture by not considering the aspect of "punishment" as provided for under Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. When applying laws or evaluating evidence, it is prudent to look at them as a whole and not in part in order to avoid injustices in administration of justice.

In addition, RC submitted that evidence, adduced by C did not disclose that State agents inflicted severe pain on him.

In Ireland Vs. United Kingdom (1978) 2 EHRR 25, the court differentiated torture from inhuman treatment or punishment or 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 reaches a minimum level of severit; and the degrading treatment requires "ill treatment" designed to arouse in the victims feelings of fear, anguish, inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance".

I therefore do not agree with RC that the State agents did not inflict on C severe pain or suffering. From the evidence adduced, C was riding a bicycle on which he was carrying firewood. He then rang the bell to be given way but the Arrow Boys declined to give him way. So, when he got off the bicycle, these State agents (and specifically Okiror got a stick from his firewood and started beating the C who was lying on the ground calming that the firewood he was carrying had scratched him.

From the above evidence my and analysis, I find that the C's right to freedom from torture or cruel, inhuman or degrading treatment was violated by the said State agents who cleared assaulted him so severely with the purpose of punishing him.

Issue 2: Whether the R (Attorney General) is liable for the violation.

it is now established the violator of C's right were State agents serving as security forces.

According to section 3 of the Government Proceedings Act Cap 77, the Government is liable for all torts committed by its servants or agents. In addition, section 10 of the same Act provides that all civil action against the Government shall be instituted against the Attorney General. This is also highlighted under Article 119 A (4) of the Constitution of the Republic of Uganda 1995, as amended.

RC submitted that the Arrow Boys who beat C were not in the course of their duty and therefore, the Attorney General would not be vicariously liable for their acts.

In Lister Vs. Hesley Hall Ltd (2001) UKHL 22, the House of Lords up held up held that the principle that the master is liable whether the act is an authorized or an unauthorized act done in a wrongful manner.

Given the afore-cited principles of law, R is certainly vicariously liable for the actions of the Arrow Boys since they were clearly identified by C and his eye witness to have been in full uniform at the time the violation was committed. It is therefore implied that these actions were carried out individually and severally by the Arrow Boys in their official capacities.

I. Whether the C is entitled to any remedy.

Article 50 (1) of the Constitution of the Republic of Uganda 1995, as amended provides that;

"Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation/'

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

In the instant matter, it has already been found on a balance of probabilities that the aforementioned State agents violated C's right to protection from torture or cruel, inhuman and degrading treatment or punishment. 1 note that the underlying principle in ordering compensation for the victims of violations of rights is to restore such victims to positions that they were in before. The compensation so ordered should therefore be adequate, effective and paid promptly.

In respect to the violation of C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment, award of compensation is based on the degree of the harm that was caused to him. In Kisembo Milton Vs. Attorney General NO. UHRC. FPT/005/2004, the complainant was beaten all over the body, pushed against the wall and punched heavily by policemen, and the Presiding Commissioner C. K. Karusoke awarded the same complainant UGX 3,000,000/= (Three Million Uganda Shillings) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment

In the instant case, C sustained injuries and bruises on the right shoulder, the left ear and the tongue; and the long term implications of these was sustaining scars much as he was likely to recover.

From the circumstances of the case, I also award UGX 3, 000,000/= (Three Million Uganda Shillings) to C as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

I therefore order as follows:

## ORDER

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the Complainant a sum of Ug. Shs. 3,000,000/- (Three Million Uganda Shillings) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment - 3. The said amount of Ug. Shs. 3, 000,000/= (Three Million Uganda Shillings) shall carry interest at 10% per annum from the date of this decision until payment in full. - 4. Each party shall bear their own costs. - 5. Any party dissatisfied with this decision or any part thereof may appeal to the High Court within 30 days from the date if this decision.

So it is ordered.