Sadik Lenis v Attorney General (Complaint No: UHRC/FPT/35/2007) [2016] UGHRC 26 (2 December 2016)


# **THE REPUBLIC OF UGANDA**

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

## **HOLDEN AT FORT PORTAL**

# **COMPLAINT NO: UHRC/FPT/35/2007**

**SADIK LENIS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**and**

**ATTORNEY GENERAL::::::::::;::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

### **DECISION**

This complaint was lodged in 2007 by the Complainant (C) Sadik Lemis, a resident of Arua District, alleging that on 18lh July, 2006 while he was at Ntandi Trading Centre in Bundibugyo District, he was arrested by a group of armed UPDF soldiers who were wearing the UPDF uniform and attached to Burondo army detach. That he was arrested on allegations of having a gun, dealing with cattle thieves and harboring rebels. That the same UPDF soldiers whom he did not know by names, upon arresting him started beating him all the way to their detach which was about 30 metres from where he was arrested. That when they reached the army detach, he was

tied "kandoya" and the said UPDF soldiers continued beating him for about five minutes. That he was detained for 4 days in a pit which was enclosed in a grass thatched hut without being given any food or drink or being allowed to take a bath. That on the 5th day he was transferred to Rwebisengo Police Post where he was detained for one day, and later transferred to Fort Portal Police Station where he was detained for two weeks before he was taken to court and charged with theft of cattle, and remanded to Katojo Prison.

The Respondent (R) denied the allegation.

#### **Issues**

The issues to be determined by the Tribunal are:

- 1. Whether C's right to 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 (the Attorney General) is vicariously liable for the violations. - 4. Whether C is entitled to any remedies.

#### **Tribunal hearing process**

This matter was heard in six tribunal sessions. It was first heard on 9th April, 2014 and both parties were present. On that occasion C testified and was cross-examined.

The second hearing was held on 11th June, 2014. R was represented by Counsel (RC) Tusiime Anne but C was not present but he had informed Counsel for the Commission (CC) that he was not feeling well and had therefore gone for treatment in Kampala. The matter was accordingly adjourned sine die.

The third hearing took place 28lh October, 2014 and both parties were present. R was represented by RC Ndibalema Grace Mwebaze. On this occasion CC informed the Tribunal that C's witness, Isingoma George had been summoned as per the filed affidavit of service and summons signed by the witness. However, the witness had informed the Commission that he would not be able to attend the Tribunal session because he had a Local Council meeting and therefore, he had prayed for the matter to be adjourned to enable him appear on a later date. The matter was accordingly adjourned sine die.

The fourth hearing was held on 26th November, 2014 and was attended by C and his witness (CW) Isingoma George as well as R's representative, RC Betty Karungi. CW testified and was also cross-examined, after which C's case was closed and RC asked to open the defence case.

Both parties attended the session of 16th March, 2015 when the matter came up for defence. RC Tusiime Anne informed the Tribunal that she had a list of witnesses and prayed to have them summoned for the next hearing, and they were: the OC Station, Rwebisengo Police Post; the OC CID, Fort Portal Police Station, and the Legal Officer, 305 Infantry Brigade, Kasese. The Tribunal indicated its concern that during the last hearing, RC Karungi Betty had requested for a 3 weeks adjournment to enable her identify witnesses but had now reneged on this. However, RC's apology for the anomaly was taken into consideration by the Tribunal which allowed RC's prayer for another adjournment, and the matter was again adjourned sine die for defense

The last hearing was held on 13th June, 2016, and was attended by C, RC Asiimwe Phiona Bamanya and two defence witnesses namely, Kabanda George William as RW1 and Tumwine Godious as RW2. The two defence witnesses testified, after which the defence case was closed and the Tribunal allowed the parties one month to file their submissions.

I note that RC did not file any submissions for further defence. However, this did not take away C's duty to prove his case in accordance with Section 101 (1) of the Evidence Act Cap 6, which requires "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 Section <sup>102</sup> which provides that "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".

I have therefore relied on the evidence adduced by the two parties to resolve the issues agreed upon.

# **Issue No. 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 one evening during 2007, he was arrested by the UPDF soldiers who were more than seven in number, and all wearing the UPDF uniform. That he was taken to their barracks at Burondo army detach. That at that time he was coming from Aruna's place in Burondo, and he was with a boda boda man going to his home at Tandi. That at first the soldiers by-passed them, like 20 metres, then he heard a gunshot ahead. That after that, he heard someone saying "kamata yeye" but he (C) told the boda boda man to continue riding. That when they reached where the soldiers were, one solider turned to him (C) and asked him, "there is a man who has run this way, did you see him?" To which C replied in the negative. That after that another soldier came and said, "you people, you should be knowing." C added that their Commander came and asked the soldiers to tell him who had fired the gun shot, and that one of the soldiers answered that there was a man with cows but he had escaped and that was why they had fired the gun shot. That the Commander also asked the soldiers about C and then one of them told the Commander that they (the soldiers) were trying to find out from C and the boda boda man whether the person who had escaped had by-passed them. The Commander told them that if the man had escaped, they should take C and the boda boda rider to make statements.

C added that when they reached Burondo Trading Centre, some of the soldiers remained at the Trading Centre and two soldiers proceeded with him (C) and the boda boda rider to the barracks.

C testified further that at that time, the two soldiers moved without saying anything to him and the boda boda rider and allowing the two of them to walk freely. That when they reached the barracks, the soldiers disappeared and another soldier came and started questioning the two of them about the gun shot. That they told him that they did not know anything about who had fired the gun, and then the solider started beating them using a gun butt. That he was joined by another soldier who also beat them, and they were beaten from outside near a house, and the beating lasted for about 15 minutes. That they were beaten all over their bodies except the heads. That they were then taken to the Commander who asked them whether they knew the man who had escaped. That C told him that he didn't know the man who had escaped. C added that the Commander left them in the hands ofthe two soldiers, who tied them "kandoya". That C and the boda boda man called Rashid which was the only name that C knew, were then put into a pit

which had at the top a grass thatched shed. That they were untied at around midnight but they were left in the pit until next morning. That they spent 4 days in the pit but during the day, they would be taken out and then taken back in the night, and this was done after asking them several questions. That whenever they replied that they did not know what they were being asked about, they would be taken back in the pit. That they were never given any food to eat, except that there were some soldiers from C's tribe who gave them some food. C added that later on the LC1 Chairman of the area by the name of Isingoma George, came and told the Commander that he had never had any problem with C and Rashid and therefore, he did not see the reason of detaining them there. That two soldiers then took C and Rashid to Ntandi Police Post in Bundibugyo, with their arms still lied, where they stayed for one day. That they were latter put on a boda boda and taken to Rwebisengo Police Post where they also stayed for one day, and started complaining to the Officer in Charge of the Station about the reason why the soldiers were making them move from one police post to another. That from Rwebisengo, they were taken to Fort Portal Police Station where they were detained for two weeks without being taken to Court. That the Officer in Charge of Fort Portal Polce Station claimed that they were waiting for the soldiers who had taken them to Fort Portal Police Station. That after two weeks, they were taken to Katojo Prison where they were detained for 6 months until they were produced before Court and the Judge told them that they had no case to answer, and they were finally released. However, he added that he did not have anything given to him by court to show what the judge had told them.

C prayed for compensation from the UPDF soldiers for the suffering the soldiers had caused to him for all the time he was under their custody and also, for the time he was detained illegally.

During his cross-examination by RC Lubowa Rachael, C pointed out that the pit with the grass thatched shed where he was detained was not big, that a person had to sleep in it without stretching himselfsince there was no extra space left at all. He further stated that the grass on the pit covered the whole pit. He also claimed that the soldiers beat the two ofthem using a stick of about one meter long and round in shape; and that he got injuries and swellings at the back, on the upper parts of his arms, and in the chest that was stepped on by soldiers to prevent him from untying his arms. That he had medical documents from Fort Portal Regional Referral Hospital where he did not pay any money. He also stated that the pain affected his daily activities, and

that even at the time he testified before the Tribunal he continued to feel pain in the chest while in a sitting position, and that about two months back he had received treatment for the pain.

CW, George Isingoma stated that it was in 2006, on the date and month he could not recall and while he was at his home, when six soldiers of the UPDF attached to Burondo army detach approached him and asked him whether he was the LC Chairman of the area, to which he answered in the affirmative. That they asked him whether he knew Sadik (C), and again he responded in the affirmative. That they told him that they had arrested C, and requested him to take them to C's home, which he did but they found C's house locked.

CW confirmed that when he followed the soldiers to Burondo army detach, he found C at the detach being detained in a cell but the soldiers brought him outside after he (CW) had requested to see him. That C looked having been beaten, and he had wounds on his fore head and ankles which were both bleeding. That he did not talk to C but just saw him and after that, he was taken back to the cell.

He corroborated C's evidence further when he stated that on the following day he went back to the detach and was told that C had been taken to Ntandi Police Post. That he did not see C again because when he went to Ntandi Police Post, he was told that C had been taken to Rwebisengo Police Post and therefore from that time, he did not see him again until that day when they met at the Commission and appeared before the Tribunal.

When CW was cross examined by RC, he pointed out that he was not present when C was arrested but argued that it was the soldiers who tortured him, although he was not there when he was being tortured. And when the Tribunal inquired from him how he knew that C was beaten by the soldiers, he replied that he knew that they were the one who had beaten C because C was detained at Burondo army detach by those soldiers.

R's side produced its first witness (RW1), Kabanda George William, who was then the Legal Officer at Hima Barracks, and who testified that according to the records at Hima Barracks, in 2007 when the army received C's allegations, inquiries were carried out by the Legal Department in respect of the matter and in consultation with the Intelligence Department. That

the records showed that the officers of the 59 Battalion had settled in Butama, Bundibugyo District and therefore, denied that these officers and men ever took part in the torture ofC.

RW1 further stated that that unit at Butama also had a detach in Mbikka, in Bundibugyo and had no detach in Bulondo; and that therefore there was no connection between C's arrest to the army. That they suspected that C may have been arrested by other groups since there was insecurity with different rebel activities going on in the area, and the rebel group had the same uniform as that ofthe UPDF.

The Tribunal admitted the letter written by UPDF to UHRC in response to the latter's inquiries about this complaint, as R's first identification document (RID1). However, RW1 was not crossexamined.

The second defence witness (RW2), Tumwine Godious testified that he was Assistant Superintendent of Police (ASP) Police Officer Cadet, and that he had been at Rwebisengo Police Station for only 8 months by the time he testified. He therefore said that he had no idea about the matter before the Tribunal, adding that although he had tried to investigate about it after he had received summons, he had not found any file at Rwebisengo Police Station about this matter. Accordingly, RW2 did not adduce any defence evidence of value, and his appearance before the Tribunal in this manner only portrayed R's side as acting in desperation trying to patch up defence evidence even where there was none, at all.

Furthermore, R's side in spite of the defence evidence that was called, did not dispute the fact that C had been tortured by any other UPDF soldiers other than those of the 59 Battalion he talked about. The main thrust of R's rebuttal to C's evidence included and focused on denial of the UPDF having had a detach at Bulondo where C claimed to have been detained and assaulted from. However, first RW1, Kabanda George William who made this denial in his testimony was not even in the 59 Battalion that had settled at Butama and at the time the alleged incident of assault on C took place in 2006. He was even not at Hima Barracks when C's allegations were investigated during 2007 in the records at the barracks by officials of the Legal Department. He clearly told the Tribunal that for his own testimony he relied on the findings made by the Legal Department in consultation with the Intelligence Department during 2007. Therefore, he had not played any part in the 2007 investigations. The letter he interpreted for the Tribunal was not

written by him but rather, it was written by one Lt. Jackson Muhindo. RW1 only received it from RC on 13th June, 2016 just before he testified before the Tribunal, and RC had also received it from UHRC through CC, and not from his client.

Moreover, while RW1 relied on the information contained in the aforementioned letter from UPDF to deny that the 59 Battalion which had settled at Butama was not responsible for C's torture, as there were no records showing that C had ever been detained there, C himself clarified that he had not claimed to have ever been detained at Butama.

The Tribunal also evoked Rule 21 (4) of the UHRC (Procedure) Rules 1998, which allows UHRC's tribunal to call for any information or evidence it deems necessary for assisting it resolve any matter before it. The Tribunal therefore scrutinized the communication on the complaint file, which UHRC had obtained from UPDF as well as Cs response to it; as well as the vital records of UHRC's investigations, all obtained by UHRC using the powers of court conferred upon it by Article 53 (b) ofthe Constitution of Uganda. It was established from all the aforementioned records and information that UPDF in its communication never talked about the Burondo army detach where C claimed to have been detained and assaulted from. UPDF 's letter dated 19th February, 2008 and signed by Lt. Jackson Muhindo, which was sent to UHRC in response to C's allegations that had been put before them, stated that C "was mot arrested and detained by our officers and men of 59".

However, C on 28th April, 2008 wrote to UHRC responding to the aforementioned UPDF letter stating that "my complaint was made against officers of 53 Battalion who are still operating in Bundibugyo and not 59 Battalion as in the UPDF response". In addition, UHRC's investigation reports on the complaint file all concurred with C's position in this respect and therefore, discredited the aforementioned denial made by RW1 regarding C's claim to have been arrested and assaulted by UPDF soldiers ofthe 53rd Battalion based at Burondo army detach.

Accordingly, the denial made by RW1 based on the aforementioned letter from UPDF, failed to rebut C's claims to have been detained and assaulted at Burondo army detach, since that letter talks about Battalion 59 which C never mentioned in his complaint.

Furthermore, CW who corroborated C's evidence in this respect, was at the time of the incident in 2006 and when he testified in 2014, the LC1 Chairperson of Burondo area as a democratically elected leader ofthe people in that area. Moreover, he visited C at Burondo army detach and also discussed C's case with the Commanding Officers of the same detach who had invited him. Accordingly, CW adduced direct evidence that is credible and which therefore confirms that indeed, the UPDF had a detach at Burondo, and that this is where C was actually detained and assaulted from thus, discrediting further the denial made by RW1 as the key element in the defence case.

I have therefore found R's evidence to be not only incredibly hearsay but also, totally unconvincing and therefore, undependable. Defence evidence has therefore failed to rebut and discredit prosecution evidence in this matter.

C's complaint was about a right that is fully protected by human rights law at International, Regional (African) and National (Uganda) levels. To this effect, Article 5 of the Universal Declaration of Human Rights (UDHR), 1948 states 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), 1996 also similarly protects the same right. However, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in short known as the CAT) 1984, explicitly and totally prohibits torture stating 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 for torture. At the Regional (African) level, the African Charter on Human And Peoples' Rights (ACHPR) 1982, under Article 5 also reiterates the same legal provision totally prohibiting torture.

The Constitution of Uganda, 1995 under Article 24 also similarly prohibits torture. Moreover, Article 44 lists the right to protection from torture or cruel, inhuman or degrading treatment or punishment as one ofthe four non-derogable rights in Uganda.

The assault that was meted out upon C would constitute torture ifit is proved taking into account the established legal definition of torture. Therefore, in order to determine whether C's right under instant consideration was violated, and whether it was violated to the level of torture, I must take into account the appropriate legal definition of torture. However, as the assault on C took place in 2006, well before the Prohibition and Prevention of Torture Act 2012 came into force I can not use the definition it provides in this respect. Instead, I shall make use of the definition provided under Article <sup>1</sup> ofthe aforementioned CAT in order to evaluate the evidence adduced to determine whether the violation of C's right amounted to the level of severity that would be categorized as torture, or whether the violation amounted to what can be categorized as only cruel, inhuman or degrading treatment or punishment. The CAT provided 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, 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 any other person acting in an official capacity.

This definition includes the following critical ingredients or contours:

- Whether the action(s) of the alleged culprit(s) caused the affected victim(s) severe pain and suffering, whether physical or mental. - Whether the pain and suffering caused by the action(s) of the culprit(s) was (were) intentionally inflicted on the victim(s). - Whether the purpose of the action(s) was to obtain information or a confession, or for punishment, intimidation or coercion, or for any reason based on discriminating the affected victim(s); and - Whether the action(s) that has/have inflicted pain and suffering was (were) 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.

In this respect, therefore, I shall apply the four ingredients in the definition of torture summarized above in order to determine whether it was torture, or only cruel, inhuman or degrading treatment or punishment that was committed by the aforementioned soldiers.

C clearly testified that the UPDF soldiers who arrested and took him to Burondo army detach beat him severely all over his body for about 15 minutes using gun butts and as his arms were tied at his back (kandoya), then damped into a small underground pit used as a cell and kept in there for 4 without food to eat or water to drink or bathe with. CW corroborated this evidence as an eye-witness when he stated that he personally visited C at Burondo army detach and saw C with fresh injuries and bruises on his body.

Although C did not produce any medical documents to support his allegation of such an assault and its effects, nevertheless his evidence as corroborated by CW, discharges his burden of proof in respect of the soldiers' action of assault, as he adduced cogent evidence by himself and as corroborated by CW, proving on a reasonable balance of probability that indeed, the assault did take place with severe consequences both physical in terms ofthe injuries suffered, and mental in terms of the impact of the injuries and of the action of being tethered arms at the back for many hours and being kept like a beast in squalid conditions in a small underground pit. The law does not require medical evidence to prove such horrific assault, although such scientific evidence becomes useful to prove the gravity of the effects of the assault (see **Fred Kainamura and Others vs Attorney General and Others, 1914, V KARL 92).**

It is very clear from the nature of the assault that was meted out upon C and its effects as evaluated, that the aforementioned first ingredient of torture was involved in the actions of the said UPDF soldiers and the effects ofthe same actions.

C again clearly pointed out that the UPDF soldiers assaulted him as they repeatedly asked him to tell them whether he had seen the person with a gun and where he had escaped to. CW testified that the soldiers after detaining C, went to him and asked him to take them to C's house apparently to search for the person suspected to have escaped with the gun but C's house was found locked. It is therefore clear that C was assaulted by the soldiers whose explicitly declared intention was to coerce him to give them the information they needed about the suspected escaped man with a gun. This therefore satisfies the aforementioned second ingredient of torture being the intention ofthe assault action\* and the third ingredient being the purpose ofthe assault action.

It goes without saying that the soldiers who assaulted C were employees of the State, their master and specifically at the time they assaulted C, they were dressed in their official uniform, officially carrying UPDF fire arms, and also carrying out their official patrol duties. This therefore satisfies the aforementioned fourth ingredient of torture thus, completing the entire package of the aforementioned ingredients or contours that constitute the nature of an assault action that reaches the level of torture by the standards of the aforementioned CAT deification and the established international conceptualization oftorture.

Accordingly, it is now safe for me to find and hold that the UPDF soldiers based at Bulondo army detach, in July 2006 did torture C and therefore breached Article 24, 44 and 221 of the Constitution of Uganda as well as the provisions of the International and Regional human rights legal instillments that were cited earlier on.

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

C stated that after he had been arrested by the aforementioned UPDF soldiers and taken to their barracks in Burodo army detach, he was detained there in a pit for 4 days. That he was transferred to Ntandi Police Post in Bundibugyo, on the intervention of the LC1 Chairperson of Burondo, where he was detained for one day. That from here he was taken to Rwebisengo Police Post where he was detained for one day, and thereafter taken to Fort Portal Police Station and detained there for two weeks without being taken to Court.

Fie added that after two weeks, he was taken to Katojo Prison where he was detained for 6 months until he was taken to court where the Judge told him that he had no case to answer, and then finally released him. However, he clarified that he did not have any document given to him by court to show what the judge told them.

The evidence adduced by C in respect of the issue under instant consideration and more specifically the period of C's detention, was never contested by R's side either in form of crossexamination or through rebuttal by defence evidence. C's testimony is consistent and therefore leaves no room to for doubting it. Moreover, C's evidence was to a great extend corroborated by the equally unchallenged evidence adduced by CW, George Isingoma, who was contacted by the soldiers on the day C was arrested and first detained, and who then follow C and found him detained at Burondo army detach. CW also confirmed that C was transferred to Ntandi Police Post from where he was taken to Rwebisengo Police Post, although CW never saw him again until they met at the Commission's offices on 26lh November, 2014.

C's evidence in this respect was further supported by documentary evidence, including a certified copy of the lock-up register from Rwebisengo Police Post, which was admitted as his first exhibit with the consent of RC. The lock-up register indicated that C was detained at this station from 20lh July 2006 to 24th July 2006, and then transferred to Fort Portal Police Station by Army Officer Musinguzi, and in this regard, exhibit 2 which is the note from Fort Portal Prison signed by the Officer in Charge ofthe Prison was also admitted as C's second exhibit, again with the consent of RC. This note indicated that C had been charged with the offence of stealing cattle, and that he was admitted in the Prison on 3rd August, 2006 and discharged on 27th March, 2007.

There were however, some inconsistencies in the dates that were stated by C and those appearing on the exhibits, specifically the year when the said violation occurred. C stated that it was in 2006 but the documents indicate 2007. However, R's side never challenged this minor inconsistency in any way.

I regard the inconsistency to be minor and not to have been deliberately intended by C to deceive the Tribunal, at all. Accordingly, I have applied the principle oflaw that provides for such minor and unintentional inconsistencies to be ignored as they are not detrimental to the cause ofjustice. (See Order JSC, in **Shaktal Adbull vs Sadrudin Meralli, (SC) Civil Appeal No. 32/94).**

The right that C claimed to have been violated in this respect is protected by Article 23 of the Constitution of the Republic of Uganda. However, it is not an absolute right since it can be derogated from when any of the circumstances listed in Article 23 (1) of the Constitution exist. The same Article however, prohibits arbitrary arrests and detention, and 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. In addition, the Article provides that a person arrested, restricted or detained shall be kept in a place authorized

by law; and further that a person unlawfully arrested, restricted or detained by any other person or authority shall be entitled to compensation from that other person or authority whether the State or an agency ofthe State or other person or authority.

Section 119 (h) (i) of the UPDF Act, 2005 lists the category of persons subject to military law and they include: every person found in unlawful possession of arms or equipment ordinarily being the monopoly of the Defence Forces. In **David Livingstone Oculi vs Attorney General, UHRR [2003-2007]** Pg. 15, former Commissioner K. Karusoke decided that since the Complainant was not found in possession of a gun and was not in a category specified in the UPDF Act, his detention at Akalo Army detach was therefore illegal.

I am convinced that C was indeed arrested and detained as he stated, because the evidence he adduced is consistent with that given by his witness especially in relation to the different transfers that were earned out between police posts. I am also convinced that his detention at Burondo army detach was illegal, since he was not in the category specified in the UPDF Act as subject to military law.

The law is that once a plaintiff or complainant proves to the satisfaction of court or the tribunal that he was arrested by the defendant's or respondent's agents, the burden then shifts to the latter to prove that the arrest and detention was justifiable as was asserted in the case of **Sekaddu v Ssebadduka (1968 E. A 212).**

As already noted, R called 2 witnesses, one of whom knew nothing about the case and the second, who relied on the letter from UPDF which claimed that the army had never arrested and detained C.

However, C's evidence has been adequately corroborated both by his witness and the relevant vital documentary evidence. I am fully satisfied that the confusion about the 59 Battalion and 53 Battalion has been sorted out in favour of C's case.

I have therefore found the defence arguments to be baseless and therefore, concluded that on a balance of probabilities, C's right to personal liberty was violated by State agents for a period of 20 days before he was taken to court and remanded to prison. Furthermore, C was detained at an

Army detach yet he was a civilian and moreover, not suspected of being in possession of firearms.

## **Issue 3: Whether R (Attorney General) is liable for the violations.**

The principle of law applicable in this respect has it that any action or omission done by a servant while carrying out his official duties or while he is in his employment, is considered to be part ofthe servant's employment and it also therefore renders the servant's master liable for the same action or omission, even ifthe act or omission has been carried out contrary to the orders or instructions of the master, or even when the servant has acted deliberately, wantonly, negligently or criminally or contrary to specific instructions given to him or her, or indeed acted for his or her own benefit, gain or advantage, as long as what the servant has carried out or omitted was merely a manner of carrying out what he was employed to carry out. (See the judgment by Justice Newbold in the famous case of**Muwonge vs Attorney General, 1967, EA, 17).**

In **Lister v Hesley Hall Ltd (2001) UKHL 22,** the House of Lords also articulated the principle that the master is liable for the actions of his servant whether the act is authorized or an unauthorized act done in a wrongful manner.

Article 119 of the Constitution of Uganda, provides for the functions of the Attorney General which include among others, to represent the Government of Uganda in courts or any other legal proceedings to which Government is a party, as has been the case in this matter.

Section 3 of the Government Proceedings Act Cap 77 provides that the government is liable for all torts committed by its servants or agents; and Section 10 ofthe same Act further provides that all civil action against the government should be instituted against the Attorney General.

Accordingly, R in the instant case is vicariously liable since the UPDF soldiers and Police Officers who violated C's right to freedom from torture and the right to personal liberty, respectively were servants of the State and carrying out State duties when the violations occurred.

### **Issue 4: Whether C is entitled to any remedies**

According to Article 50 (1) ofthe Constitution of the Republic of Uganda 1995, any person who claims that a fundamental or other right or freedom guaranteed under the constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation. C is therefore entitled to compensation.

And Article 53(2) gives the Uganda Human Rights Commission power 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. I shall therefore invoke these powers to order compensation for C.

**The right to freedom from torture or cruel, inhuman or degrading treatment or punishment**

In this case, I am taking into consideration the severity of the cruelty and inhuman treatment that was involved in the violation, as well as the fact that this freedom is an absolute right.

In **Kisembo Milton vs Attorney General, UHRC FP/005/2004,** the complainant was beaten all over the body, pushed against the wall and punched heavily by policemen. The Presiding Commissioner C. K. Karusoke awarded the complainant Ug. 3,000,000= (Uganda shillings three million only) as compensation for the violation of his right to protection from torture, or cruel, inhuman or degrading treatment or punishment.

Flowever, in the instant matter C was beaten all over his body except the head, his hands were tied "kandoya", and he was detained in a small underground pit covered with grass for 4 days and also moved from one detention facility to another without any justification. I therefore award to C Ug. 4, 500,000/= (Uganda Shillings four million five hundred thousand only) as compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

#### **The right to personal liberty**

In the case of**Agaba Bernard Vs. Attorney General, UHRC(2008-2011)** former Commissioner Fauzat Mariam Wangadya held that the complainant was entitled to compensation for violation of his right to personal liberty, and that it was the practice of the Tribunal to award Ug. Shs 2,000,000= (Uganda Shillings Two Million) for every seven (7) days of unlawful confinement.

This amounts to about Ug. Shs.286,000= per day, which for the purpose of this decision, I am rounding up to Ug. Shs.300,000= per day.

It has already been established that C was detained at various places for a total period of 20 days without being produced before Court or being released on police bond. This duration minus two days which is the equivalent of the 48 hours permitted by the Constitution in such cases, leaves a balance of 18 days of unlawful detention. However, I also take note ofthe fact that 4 ofthese days were spent in an ungazzeted place of detention, moreover in an underground pit and within an army detach yet, he was a civilian and the soldiers who arrested him knew that he did not have any gun.

I am therefore awarding Ug. Shs.6,000,000= (Uganda shillings six million only) as general damages in compensation to C for the violation of his right to personal liberty.

I therefore order as follows:

# **ORDERS**

- 1. The complaint is allowed. - 2. R is ordered to pay to Sadik Lenis a total sum ofUg. Shs. 10,500,000/- (Uganda Shillings ten million five hundred thousand only) as compensation for the violation of his two rights, broken down as follows:

| a) | of<br>For<br>the<br>violation<br>his<br>right<br>to<br>freedom | | | |----|----------------------------------------------------------------|---|---------------------------| | | from<br>torture<br>or<br>cruel,<br>inhuman<br>or | | | | | degrading<br>treatment<br>or<br>punishment | - | Ug.<br>Shs.<br>4,500,000= |

- b) For the violation of his right to personal liberty - Ug. Shs. 6,000,000= **TOTAL - Ug. Shs. 10,500,000=** - 3. Interest at the rate of 10% per annum shall be paid on the total of Ug. Shs. 10,500,000= calculated from the date ofthis 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 FORT POTAL THIS . DAY 2016.**

**PRESIDING COMMISSIONER**