Sabiti v Attorney General (Complaint No: UHRC/FPT/02/2009) [2019] UGHRC 25 (4 February 2019)


## **THE REPUBLIC OF UGANDA**

### **THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

### **HOLDEN AT FORT PORTAL**

### **COMPLAINT NO: UHRC/FPT/02/2009**

**SABITI ROBERT CHAPA:::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**and**

**ATTORNEY GENERAL RESPONDENT**

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

### **DECISION**

The Complainant (C), Sabiti Robert Chapa alleged that on 24rd December, 2008 he was arrested by escorts of the then District Internal Security Officer (DISO) of Bundibugyo District, a one Kagooro Deogratius on allegations of being in possession of a gun and theft of cattle. That he

was thereafter detained at Katanga Police Post in Rwangara Sub-county, Ntoroko District for one night. That later on he was transferred to Bundibugyo Police Station where he was also detained up to 26lh December, 2008 when he was picked up from the same Police Station by the said DISO and driven to Kikyo forest where he was beaten with batons on the legs, back and head by the DISO. That he was then taken to Kanyamwirima Army Barracks in Bundibugyo District and detained for two days. That on 29th December, 2008 he was taken back to Bundibugyo Police Station and released on police bond on 2nd January, 2009.

C therefore prayed to the Tribunal to order for compensation to him by the Respondent (R) for the alleged violation of his right of personal liberty and the right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

R through his representative Counsel (RC), Ms. Asiimwe Phiona Bamanya denied liability and opted for putting up a defence in this matter.

### **ISSUES:**

The issues to be resolved by the Tribunal are:

- 1. Whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether C's right to personal liberty was violated by State agents. - 3. Whether R is liable for the violations. - 4. Whether C is entitled to any remedy.

Before <sup>I</sup> resolve the aforementioned issues, I would like to note from the record of proceedings that this complaint was lodged in the names of Kyapa Robert however, as per the statutory declaration dated 15th June 2017, C confirmed that Kyapa Robert and Sabiti Robert Chapa was the same person and his National Identity card bears the same names.

Secondly, R's side neither called any witnesses in defence in this matter, nor filed any written submissions. RC was only able to cross-examine C and his three witnesses. Nevertheless, C still retained the duty of proving his case against R to the satisfaction ofthe Tribunal as required under Section 101 (1) ofthe Evidence Act Cap 6, which states that:

Whoever desires any court to give judgment as to any legal right or liability dependant on the existence offacts which he or she asserts must prove that the facts exist.

And under Section102 ofthe same Act, which also states that:

The burden ofproofin 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 *Cs* right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

C on 13th June, 2016 testified saying that seven years before, he was arrested from his home in Rwangara, at around 5.00 p.m. on 24th December, 2008 by the DISO of Bundibugyo, one Kagooro Deogratius and his escorts in the presence of the Local Council One (LC1) Chairperson known as Birungi, as well as Kaboyo Beatrice, Mugisa Eric and Asiimwe Costat. That he was taken to Katanga Police Post driven in the DISO's double cabin vehicle, while he was being slapped by the DISO.

That at Katanga Police Post, he was accused of theft of one Kaleebe's cattle, before he was detained. That on the next day, he was taken to Rwebisengo and then to Bundibugyo Police Station where he spent one night. That on the following day the DISO and his escorts picked him up from Bundibugyo Police Station and took him to Kikyo forest with his arms tied and while he was there, the DISO and his escorts beat and kicked him on the back, all joints, the neck and the head as his arms were still tied. That as they beat him, the DISO and his escorts were asking him for a gun and Kaleeba's cattle, and this lasted for about 2 !4 hours. That he was then taken to Kanyamwirima Barracks where he spent two days but this time without being beaten.

That the DISO then took him back to Bundibugyo Police Station where he was detained again for about 2 to 3 days before he was given a police bond. That when he was released, he went to Buhinga hospital where he was examined, treated with injections and also given some other medicine. However, he added that he still felt some pain up to the time he testified. He also clarified that the case in court against him was dismissed.

During cross-examination, C reiterated that he was charged in court for theft of cattle using a gun; and that he got to know that the person who had arrested him was the DISO only after he had reached Bundibugyo Police Station. He stressed that he could identify the people who arrested him.

C's first witness (CW1), Mugisa Eric testified that on 23rd December, 2008 at around 4.00 p.m. he was arrested from his home at Katanga by army men who were about five in number. That some of them were wearing the army uniform and one of them was the DISO of Bundibugyo District. That he also identified one soldier by name, of Bahemuka, who was staying in the same area where he himselfstayed. That the soldiers ordered him to take them to C's home, which he did and when they reached C's home, C was not around. That he (CW1) was taken to Rwebisengo Police Post together with Mugenyi whom he had found in the vehicle at the time he was arrested. That in the morning of 24th December, 2008, he saw the soldiers come from Rwongara with C who was crying and also had a swollen body. That C was still being beaten by the soldiers using sticks, and this lasted for about 30 minutes. That as he was being beaten, he was being asked to produce the gun he had allegedly used to steal cows but he was telling the soldiers that he did not know about the gun.

That at Bundibugyo Police Station, him (CW1), Mugenyi (CW2) and C were put in the same cell but C was later picked up by the soldiers, beaten again as they carried him and then thrown onto a vehicle, after which he was taken to a place he later got to know from the police officers at the Station, as having been Kanyamurima Army barracks. That C was returned to Bundibugyo Police Station after two days, but at that time he could not sit or speak. That the Police officers at Bundibugyo Police Station wanted to take him to hospital but this was not possible as that day was a public holiday. That some family members brought some medicine for him.

During cross-examination, CW1 reiterated that he did not know the names of the people who arrested C but they were putting on UPDF uniforms, and they included the DISO. He also clarified that he did not personally see C being arrested but he definitely saw him being beaten as he was brought in the detention cell at Bundibugyo Police Station.

CW2, Mugyenyi Kabagambe Moses testified that on 23rd December, 2008 while he was at Rwangara village at around 4:00 pm, two army men, one ofthem called Bayamuka, arrested him and he was put in a red double cabin vehicle. That the second person who arrested him identified himself as the DISO of Bundibugyo District. That they then also arrested CW1 and the two of them were taken to Rwebisengo Police Post. That on the next day, the DISO brought C who at that time did not have his shirt on. That he had been beaten since he had stick marks on the back and the knees. That when he was being brought to the cell he was still being beaten by the DISO using a stick while demanding that C produces the cows that he had allegedly stolen. That this lasted for about 20 minutes. That the DISO came back the next morning and picked up C, took him outside the cell and beat him using a stick. That since the cell had iron bars only in the windows, it was easy to see what was going on outside. That C was taken away by the DISO, and then returned after three while days in a bad state. That he could not walk and was taken immediately to hospital. That after their release, he saw C again on 16th January, 2009 and he was still weak.

During cross-examination, CW2 stated that he was also charged for the alleged theft of cows, adding that C spent around four days detained in other places while him and CW1 stayed at Kagurukutu barracks. That C was arrested the next morning after their own arrest which took place on 23rd December, 2008.

CW3, Mugarura Jackson said that he was a medical Officer. That he worked at Fort Portal Regional Referral Hospital, and had worked there for about 27 years. He identified the Uganda Police Form <sup>3</sup> in the names of Kyapa Robert, saying that it had been sent from Bundibugyo Police Station on 5th January 2009 to Buhinga Regional Referral Hospital with a request to have Chapa Robert who was accused ofstealing cattle, examined.

He stated further that he received Kyapa Robert on 5th January, 2009, who was at that time complaining of having been injured on 26th of December, 2008. That he had bruises all over his back, a swelling with blood under the skin on his right ring finger and bruises on his right shoulder which were 2cm in diameter. He classified the three injuries as harm.

CW3 added that C also had a grossly swollen left leg, grossly swollen left foot, grossly swollen right foot and he was also bleeding from his nose. That in addition to all this, he had severe tenderness of the lower part of his back and a sprained left ankle. He classified these injuries as grievous harm. He also noted that these injuries could have been caused by a blunt object.

The Police Form 3 that CW3 interpreted was admitted with the consent of RC as CX2.

During Cross-examination, CW3 reiterated that C had told him that he had been injured on 26th December 2008. He also clarified that Fort Portal Regional Referral Hospital was the same as Buhinga Regional Hospital. Fie stressed further that he was not sure if C was charged any monies at the hospital. He also clarified that he was a clinician with a work experience of 26 years. That he was qualified to carry out such examinations as he had done on C. That he used to sign all his medical reports and the Medical Superintendent confirmed them. That he put C on treatment, although it was not reflected on the document. That C improved after he had received treatment but his left ankle was still experiencing pain. He also clarified that C had never returned to hospital for a review.

Since RC failed to call any defense witnesses and as she also never even filed any written submission to rebut C's evidence, the principle of law applicable in this regard states that whenever contentions issues are raised and argued before courts of law or tribunals as has been the case in this matter, and they are not rebutted by any evidence adduced by the defence or respondent's side to successfully discredit and disprove the plaintiffs or complainant's evidence, then such issues are deemed to have been admitted by the defendant or respondent [See **Edeku vs Attorney General ('995) VI KALR 24].**

The violation that C claimed to have suffered in regard to this issue is protected by Uganda's laws as well as the relevant International and Regional (African) legal human rights instruments that Uganda has signed and ratified.

Specifically in this respect, Article 5 of the **Universal Declaration of Human Rights (UDHR) of 1948** provides that "no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". Article 7 of **the International Convention on Civil and Political Rights, 1996 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)** also similarly prohibit torture.

The African Charter on Human and Peoples' Rights (ACHPR), 1981 under Article 5 states that "all forms of exploitation and degradation of man, particularly slave trade, torture, cruel, inhuman or degrading treatment or punishment shall be prohibited".

Article 24 of **the Constitution of the Republic of Uganda** also prohibits violation of the same right, and Article 44 provides for the said right to be non derogable.

In order for me to determine whether C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated, I have to take into account the definition of torture that has been internationally established and which has also been applicable here in this country.

In Uganda torture is currently defined under the Prohibition and Prevention ofTorture Act, 2012. However, since the alleged violation took place in 2008 before this Act came into force, the said definition cannot be retrospectively applied to this complaint. I am therefore applying the definition provided under Article <sup>1</sup> ofthe aforementioned CAT, which provides 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 is 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.

It is therefore necessary for me to evaluate the evidence adduced by C taking into account the afore-cited definition oftorture, in order to determine whether the four ingredients identifiable in

the CAT definition of torture are proved by C's evidence. The four ingredients of the CAT definition oftorture are:

- Whether the alleged actions of assault caused the victim severe pain or suffering, whether physical or mental. - Whether such pain and suffering that the acts caused was intentionally inflicted on the victim. - Whether the purpose of the actions was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination. - Whether the actions were carried out by, or at the instigation of, or with the consent or acquiesce of, a public official or other person acting in official capacity.

From the evidence that C adduced, it is clear that the injuries that C suffered did seriously affect him both physically and mentally. The severity of the effect of the injuries was scientifically confirmed by the medical expert, who classified some ofthem as grievous harm and the others as harm. This scientific assessment confirms that the afore-mentioned first ingredient of torture was involved in the injuries that C suffered and their effects on him.

The fact that C as he was being assaulted was all the time being asked to reveal the where abouts of the gun that his tormentors claimed he had used to steal cattle, and also to produce the cattle he had allegedly stolen this clearly indicates that the assault on him was not only intentional but also, purposeful. This is also evidenced by the duration and intensity of the assault that C suffered. Therefore, the afore-mentioned second and third ingredients of torture were also fully involved in the actions of C's assailants.

Since the DISO and his escorts who were wearing army uniform as they arrested and assaulted C were public officials and they were carrying out their official duties, there is no doubt that the fourth ingredient of the definition of torture was also involved in the actions of the people who arrested and tormented C.

Accordingly, it now goes without saying that the aforementioned security officers did both individually and severally violate C's right of freedom from torture or cruel, inhuman or degrading treatment or punishment thus, breaching the provisions of the human rights laws that were noted earlier.

Therefore, C's claim regarding the first issue under instant consideration succeeds.

## **Issue 2: Whether C's right to personal liberty was violated by State agents.**

C testified that he was first arrested at around 5:00 p.m on 24the December, 2008 from his home in Rwangara by the DISO of Bundibugyo, Kagooro Deogratius and his escorts in the presence of Birungi the Local Council Chairperson, as well as the aforementioned people namely, Kaboyo Beatrice, Mugisa Eric and Asiimwe Costat.

That he was taken to Katanga Police Post and detained for a night and the next day, he was taken to Bundibugyo Police Station where he spent one night before being taken to Kanyamwilima Barracks where he spent two days. That the DISO took him back to Bundibugyo Police Station and he was detained there for around 2 to 3 days before he was given a police bond.

C's certified copy ofthe release on bond was admitted with RC's consent as CXI.

During cross-examination, C reinstated that he got to know that he was arrested by the DISO after he had reached Bundibugyo Police Station, and also stressed that he could identify the people who arrested him. However, he also clarified honesty that he could not recall the number of days he spent in detention, because they were very many.

CW1, Mugisa Eric corroborated C's evidence in this regard when he testified that on 23rd December, 2008 at around 4.00 p.m. in the evening he himself was arrested by army men and the DISO of Bundibugyo, and taken to Rwebisengo Police Post together with CW2 where they were detained together. That in the morning of 24th December, 2008, they saw the soldiers come from Rwongara with C who was also then detained together with them. That C was later taken away to Kanyamurima Army barracks where he spent two days. He also corroborated C's claim that the three ofthem were detained until 2nd January, 2009 when they were released on police bond.

During cross-examination, CW1 also corroborated C's evidence saying that the people who arrested C were wearing UPDF uniforms and that one of them was a DISO. CW1 also clarified that they spent 13 days in detention.

CW2's testimony stating that he was himself arrested on 23rd December, 2008 by army men, also provided information that corroborated C's claim that his two witnesses (CW1 and CW2) were arrested a day earlier and that after his own arrest on 24th December, 2008, he was taken where they were and detained together with them. CW2 also confirm C's claim that the three of them were released on bond on 2nd January, 2009.

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda. It is not an absolute right since it can be derogated from when any ofthe circumstances listed in Article 23(1) of the Constitution exist; for example, where there is reasonable suspicion that the person arrested has committed or is about to commit a criminal offence.

However, the law prohibits arbitrary arrests and detention, as the Constitution of Uganda sets out procedural guarantees to prevent the abuse of persons under arrest and detention. Thus, Article 23(4) (b) requires that anyone arrested upon reasonable suspicion that he or she has committed or is about to commit a criminal offence, must if not earlier released be produced in court within 48 hours.

C tendered in the release on bond document which only indicates the day when he was released. He did not tender in any other documentary evidence to prove the duration of his detention. Nevertheless, his evidence in this regard was well, credibly and convincingly corroborated by the evidence that was adduced by CW<sup>1</sup> and CW2 and who could remember clearly the date when they were arrested, and who also emphatically clarified that C was arrested a day after their own arrest but they were all released on the same day.

Furthermore, although C's arrest was based on a reasonable suspicion oftheft of cattle and it was therefore lawful, his detention by police from 24th December, 2008 to 2nd January 2009, a total of ten days without being taken to court or being granted bail was however, done contrary to Article 23(4) of the Constitution of Uganda, and therefore illegal, as mere suspicion cannot justify detention beyond the Constitutional mandatory period. However, the forty-eight hours or the equivalent two days allowed by the Constitution for lawful detention of the suspects before they are released on bond or taken to Court must be taken into account thus, leavening eight days of illegal detention in this respect.

I must also note that this illegal act denied C the enjoyment together with his relatives, the important days ofChristmas and New Year's Day.

Therefore, <sup>I</sup> find on a balance of probabilities that C's right to personal liberty was also violated by the State agents who detained him and who are also R's Clients in this matter now under my resolution.

Accordingly, C's claim in this regard also succeeds.

# **Issue 3: Whether R is liable for the two violations.**

Article 119 of the Constitution of Uganda provides for the functions of the Attorney General to include among others, representing 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 Complaint.

I have already concluded and ruled that the DISO, his escorts and all the policemen who violated C's two rights, earned out their wrongful and illegal actions while they were in the process of carrying out their official duties.

Furthermore, since R never adduced any evidence to prove the contrary, I have 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 of the 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 of C's two rights as already established and ruled in the foregoing discussion on issues numbers <sup>1</sup> and 2.

Accordingly, C's claim in this respect also succeeds.

### **Issue 4: 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.

Since C has proved to my satisfaction that his aforementioned two rights were violated by the said State agents, he is therefore entitled to receive compensation from R by way of damages which I must now asses and determine in the same order that I determined the two violations.

# **a) Violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment.**

In assessing the general damages to be ordered, I have decided to take into account all the acts constituting the torture that was meted out on C, as well as the cruel and inhuman manner in which they were meted out upon him, plus their physical and psychological effects on him. I am also taking into account the Principle of law as it was captured in **Osifelo et al Vs. RCA Solomon Islands (1995) 3 LRC, 602 at 608 (Kinby P),**where it was held that:

The prohibition of torture enshrines one of the most fundamental values of a democratic society. Its presence in a national Constitution commits the country and especially its law enforcement officers to performing their difficult duties with due regard to the essential dignity of every human being. The Constitutional instruction must be obeyed by all. It must be enforced even in hard cases by court.

According to the evidence I have evaluated, C sustained injuries all over his body. The injuries must have affected his ability to work for some time, since the medical expert pointed out that although C had improved, he still experienced pain in his ankle even though he had never returned to hospital for review. However, C himself stated emphatically that at the time he testified, he still felt some pain.

Therefore, in these specific circumstances of this case, I award C, UGX 8,000,000/= (Eight million Uganda shillings only) as general damages in compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

### **b) Violation of the right to personal liberty**

<sup>I</sup> have already ruled that C's right to personal liberty was violated for a total of eight days.

In the case of **Mugisa John Bosco and Bizimungu Alex vs Attorney General, UHRC/097/2003,** after it had been established and proved that the two Complainants were illegally detained at Nkoni Police Post for five (5) days in the year 2000, the Presiding Commissioner, former Commissioner Constantine Karusoke who heard the case, awarded them UGX 2, 000,000/= each as general damages for this violation oftheir right to personal liberty. I am using this precedent to a certain extent as a basis for determining the amount of money to be ordered for the similar violation in the instant case.

However, I am also taking into consideration the principle that was upheld in the case of **Matiya Byabalema and others vs Uganda Transport Company, SCCA, 10/193,** in which His Lordship Justice Odoki JSC held that:

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

While the complainant in the aforementioned precedent case was illegally detained for only five days for which was awarded UGX 2,000,000=, in the instant case C was detained illegally for eight days thus, three days longer and this must also be taken into consideration.

I am also taking into account the current value ofthe Ugandan shillings as well as the rate of inflation in the economy.

I am therefore awarding C, UGX 4, 000,000/= (Four million Uganda shillings only) as general damages for the violation of his right to personal liberty for the eight (8) days he was illegally detained.

I am therefore ordering as follows:

## **Orders:**

- 1. The Complaint is allowed. - 2. R (Attorney General) is ordered to pay C, Sabiti Robert Chapa a total sum of UGX. 12,000,000/= (Uganda shilling twelve million only) as general damages in compensation for the violation of his two rights broken down as follows:

| | Total | - | 12,000,000<br>UGX. | |----|--------------------------------------------------------------------|---|--------------------| | | liberty | - | UGX<br>4,000,000= | | b) | ofthe<br>the<br>For<br>violation<br>right<br>to<br>personal | | | | | punishment<br>or | - | UGX.<br>8,000,000= | | | or<br>cruel,<br>inhuman<br>treatment<br>torture<br>or<br>degrading | | | | a) | ofthe<br>offreedom<br>violation<br>For<br>the<br>right<br>form | | |

3. Interest at the rate of 10% per annum to be paid on the sum of UGX. 12,000,000/= (Uganda Shillings twelve million 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 FORTPORTAL ON THIS. ... DAY OFf^fe^SM^^.^2019**

**SIGNED BY:**

**DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER**