Sanyu and Another v Attorney General (Complaint No: UHRC/FPT/15/2012) [2016] UGHRC 27 (29 November 2016)

Full Case Text

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## **THE REPUBLIC OF UGANDA**

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

# **HOLDEN AT FORT PORTAL**

## **COMPLAINT NO: UHRC/FPT/15/2012**

**1. SANYU SALLEH**

**COMPLAINANTS**

**2. FRIDAY PHILEMON**

**and**

**ATTORNEY GENERAL RESPONDENT**

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

## **DECISION**

The Two Complainants (Cs) brought this complaint against the Respondent (R) seeking compensation for alleged violation of their right to protection from torture or cruel, inhuman or degrading treatment or punishment and the right to personal liberty.

The two Cs alleged that they were arrested on 22nd February, 2011 by Rapid Response Unit (RRU) operatives attached to Fort Portal Police Station on the allegation of theft of money from Kenneth Inn. That while in detention at Fort Portal Police Station, they were beaten by the RRU operatives using batons around the knees, shoulders, backs and heels in order to make them confess the whereabouts ofthe money.

Cl further alleged that he was taken to RRU offices in Kireka on 7th March, 2011 and later brought back to Fort Portal Police Station on the 10lh March, 2011 and detained there until 17th March, 2011 when he was released on police bond. C2 alleged that he was released on police bond after spending six days in detention.

The Respondent (R) through his representative, State Attorney Lubowa Rachel denied the allegations and opted for putting up a defence.

## **Issues:**

The issues to be resolved by the Tribunal are;

- 1. Whether the right of Cl and C2 to protection from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents. - 2. Whether the right ofCl and C2 to personal liberty was violated by State agents. - 3. Whether R is liable for the violations. - 4. Whether the two Cs are entitled to any remedy.

#### **Tribunal hearing process**

Hearing of the matte started on 9th April, 2014 when the two Cs were both present and R was represented by Counsel (RC), Lubowa Rachel. The two Cs testified but were not cross examined.

The second hearing was held on 11th June, 2014. The two Cs were present with two witnesses and R was represented by Counsel Tusiime Ann who was holding brief for Counsel Lubowa Rachel. The first witness of the two Cs (CsWl) and their second witness who was also a medical expect (CsW2) testified but were not cross-examined since RC deferred crossexamination of the two Cs and their witnesses, praying that it should be done by Counsel with personal conduct ofthe matter.

The third hearing was held on 28lh October, 2014. The two Cs and their aforementioned two witnesses were present and R was represented by Counsel Ndibarema Grace Mwebaze. The two Cs and their witnesses were all cross-examined. After this Cs' case was closed and RC prayed for an adjournment to enable them identify their own witnesses.

The fourth hearing was held on 26th November, 2014. The two Cs were present and R was represented by Counsel Karungi Betty Gafabusa who was holding brief for Phionah Asiimwe. RC prayed for an adjournment to enable their side summon the identified witness known as J. B. Kamugisha who was formally deployed at Fort Portal Police Station between 2011 to 2012.

The fifth hearing was held on 16th March, 2015 and all the parties were present. However, the matter was again adjourned since the defence witness had not been summoned by the Commission.

The sixth bearing was held on 16th June, 2016 and all the parties were present. However, the matter was adjourned further and for the last time to enable the Commission summon the defence witness. On this occasion the Tribunal warned that failure by R's side to call defence witnesses at the next hearing would automatically result into the matter being adjourned for a decision.

The last hearing was held on 13lh September, 2016. The two Cs were present and R was represented by Counsel Kawalya Ronald who attended together with defence witness (RW) Joseph Kamugisa, a Police Officer who testified and was cross-examined. The defence case was closed and the matter adjourned for submissions and the Tribunal's decision.

Since all the parties in this matter have been accorded all the opportunities and time they needed to present their cases, it is now safe and fair to resolve the aforementioned four issues.

# **Issue 1: Whether the right of Cl and C2 to protection from torture or cruel, inhuman, or degrading treatment or punishment was violated by State agents.**

Cl, Sanyo Swalleh testified that on 22nd February, 2011 at around 7.00 a.m., he left Kenneth Inn where he used to work as a watchman and went away to another duty. That at around 11.00 a.m. he received a telephone call from one Komuntale Evelyn who told him that some people had robbed some money at Kenneth Inn. That after hearing that, he went to Kenneth Inn to find out what exactly had happened because he had earlier on checked before he left and everything was in order. That when he reached at Kenneth Inn, the Manager called Abwooli told him that some people had robbed the Inn, and that he should stay inside and not to get out.

He further stated that three men dressed in civilian clothes came and took him and other workers in another room, showed them the safe and told them that some people had broken the safe and robbed money. That after this they were taken to Fort Portal Police Station. That they were 16 workers altogether who were taken and these included among others, himself, Evelyn, Mackeline, Kato, Phillemon, Peter, Agnes and Gorrettie. That the following day, at around 2.00 p.m. he was called outside and taken in another room which had something built like a grave. That the person who took him in that room asked him whether he had a wife and children, and he replied that he had them. That he was then asked where the stolen money was and he told him that he did not know where it was. That he was then told that he was going to be beaten until he revealed where the money was. Cl added that at this juncture, the man put on sun glasses and told him that he did not want to see him (Cl) as he beat him, and then he started beating him with a baton on his knees many times. That he ordered him to stretch his legs and he hit his ankles many times, beat his back and then put some metals between his fingers and tied the fingers together with a rubber strap.

Cl stated further that he was told to stand up and C2 Philemon Friday was called in and was also beaten in the same way in the presence of Cl. That after that the man called two other people and beat them in the same way in the presence of Cl and C2. That after beating all ofthem, the man took some ofthem back to the cells, others were released but him and Agnes were retained at Fort Portal Police Station. That the other detainees told them that the person who beat them was an RRU operative.

That on 7th March, 2011 him and Agnes were taken to Kireka RRU offices. That while they were there, at around midnight, three men came asking for those people who had come from Fort Portal and who were brought by RRU operatives. That there were other three men who had also been brought in as detainees and these told Cl that they were also brought from Fort Portal, and that they had stolen money from Kenneth Inn but had been tracked by MTN. That their names were: Nsereko, Musa and Mulondo. Cl added that he was detained with these people until 10th March, 2011 but that Agnes had been released before the three men were brought in the cell at Kireka. He stated further that he was released by the Regional Police Commander (RPC) on police bond, who also told him that he had no case to answer. That after his release, he went to Kabarole Hospital for treatment. The certified copy of his release on bond form was admitted with RC's consent as C1X1, and the certified copy of the lock up register also from Fort Portal Police Station was also similarly admitted as C1X2.

He claimed that whenever he sat for long, he would feel pain in his back and shoulders, and that he also coughed blood after doing heavy work. That whenever he put on gumboots, he had to put on soft materials on his legs because he would get some burning on the legs; and that he was still on medication at the time he testified.

During cross-examination, Cl confirmed that he was arrested together with C2 on the same day and from the same place; and that they were beaten and tortured together on the same day but that they went for medical treatment at different times. He confirmed the date when he was beaten as having been 23rd February, 2011, adding that he was suspected of stealing money belonging to their boss, Kobusingye Beatrice.

C2, Friday Philemon testified that on 22nd February, 2011 as he was working at Kenneth Inn in Fort Portal Municipality Kobusinge Beatrice, the Director told him and the other workers not to let in any customer because some money was missing. That within that same hour three men came dressed in civilian clothes and since the staff members were sleeping within Kenneth Inn, the three men started asking them questions about who could have taken the money, to which the workers responded as a group that they did not know the person who had taken the money. That a lorry was brought and all the workers were told to board it, and they were taken to Fort Portal Police Station where they spent a night.

That the following day, they were called out one by one, and taken to a uniport where there was something built like a grave and when he got in he was ordered to lie down. That in the uniport he found there the men who had taken them from Kenneth Inn, as well as Cl, Sanyu Swalleh and somebody else who could have been either Mackeline or Agnes. That the men beat him using a baton on his shoulders, knees and ankles for about 30 to 40 minutes, and a stick was used to push a cloth into his mouth so that he could not make noise. That as the three men beat him they were asking him to tell them where the stolen money was.

That when he was released he left Cl in detention and he was in bad condition, worse than his own condition. That Cl could not walk and he had injuries on his elbows, knees and ankles. That him and Cl met again after about two or three weeks and Cl told him that he had been taken to RRU in Kireka. C2's police release on bond form was admitted with RCs consent as C2X2.

Cl's evidence was corroborated by the testimony of the two Cs' first witness Kisembo Stella Daaki (CsWl), who testified that Cl and himself resided in the same village and were also friends. That on 22nd February, 2011 at around 10.00 a.m., Cl informed him that he was being called back to his workplace because there had been a robbery there and that when he went, he did not return.

That he went to check on him at Fort Portal Police Station after two days when he also took to him some food. That Cl was brought out ofthe cell being supported by two people as he could not walk alone. That Cl told him that he had been beaten badly but he did not tell him who had beaten him. That his legs, ankles and knees were all swollen and Cl said that he feared he was going to become lame. That he gave Cl food and his fellow inmates carried him back to the cell.

CsWl testified further that on 27th February, 2011 when he went back to Fort Portal Police Station to check on Cl, he did not find him there and the police officers told him that he had been transferred to Kampala.

During cross-examination CsWl stated that he knew Cl but he did not know C2, Friday Philemon. He added that he was not there when Cl was arrested but was informed by his wife about it. That he was arrested on 22nd February, 2011 and detained until 17th March, 2011 but he first found him at Fort Portal Police Station.

That after two days of Cl's detention, CsWl again went back to Fort Portal Police Station because Cl's wife had given him medicine to take to him and on that occasion, he found Cl there. He added that on 7th March, 2011 and for the third time he went back to Fort Portal Police Station at around 11.00 a.m. and requested the police officers to bring Cl out ofthe cell. Tht Cl this time came walking alone without anybody supporting him. That Cl was released on that same day but CsWl had already left before his release, although he saw him later on that same day since they were neighbours.

The Complainants' expert and second witness, Mugarura Jackson (CsW2) testified that he held a Diploma in Curative and Community Medicine from Foil Portal School of Clinical Officers, and that he had worked at Fort Portal Regional Referral Hospital for 23 years. He identified the first document he interpreted for the Tribunal as being a Ministry of Health Medical Form 5 issued from Fort Portal Regional Referral Hospital, Out Patient Department (OPD) in the names of Philemon Friday, and of OPD No. 4344/2011 - OPD Special Clinic.

He stated that he saw C2, on 28lh February, 2011 and at that time he was complaining of general body pain which he had experienced for one week. That C2 had informed him that he was beaten by police officers using batons and metals. That at the time he examined him, he looked very sick although his temperature was normal. That his impression was that C2 had suffered soft tissue injuries. That he put him on treatment which included diclofenac tablets, Vitamin B Complex and Valium. He then classified the injuries as harm.

The medical form he interpreted was admitted with RC's consent as C2X2.

CsW2 also interpreted Medical Form 5 from Fort Portal Regional Referral Hospital in the names of Sanyu Swalleh, of reference IPD No. 1198/012. He pointed out that the author of this form Ms Twesigye Florence was a Medical Clinical Officer, with whom he had worked in the same Department for about 15 years.

He testified that on 19th February, 2011 Cl complained to him of an assault he had suffered 27 days back, which he said had caused him pain in the knee, chest, the back and on the right side of the chest as well as swelling of his heels. That when he examined the patient he did not find him with aneamia or jondis (yellowing of eyes) but he had bruises on his left scapular (left shoulder) as well as slight swelling of knees and the left toe nail. That he was put on coxaillin capsules,

diclofenac tablets and voline jelly to apply on the swollen parts of the body. That he was also referred for physiotherapy.

The second medical report he interpreted was also from Fort Portal Regional Referral Hospital written on 28th August, 2012 also in the names ofCl, Sanyu Swalleh and addressed "to whom it may concern". That this report pointed out that Cl had been assaulted by security operatives in February, 2011, and he had sustained bruises on the left capsular and swelling on both knees, the left toes and the heels, as well as chest pain and backache. That he had undergone treatment with little relief and he still felt shoulder pains and backache.

He further noted that he himself had signed the document as Mugarura Jackson, on 28lh August, 2012 but when he was examining the patient, he also saw various medical forms with Cl although he did not photocopy them. Fie classified Cl's injuries as harm since the injuries once properly treated, it could heal without bringing grievous harm.

The Medical Form 5 was admitted with RC's Consent as C1X2 and the medical report as C1X3.

During cross-examination CsW2 confirmed that he had worked as a clinical officer since 1988, and had therefore served in this capacity for about 26 years. That he had worked in Fort Portal Regional Referral Hospital for 23 years and in the Medical Training School for 3 years.

He further confirmed that he was the author of the medical document in the name of Friday Philemon marked as C2X2, and that that document he had interpreted was the original medical document he had written for Friday Philemon. That when C2 came to OPD on 28th February, 2011 he was complaining of general body pains which had lasted for one week. That C2 gave a brief history telling him that he had been injured by men who had beat him using batons. That he did not record any injuries on examination of C2 since he was not the first medical personnel to examine him. He also clarified that he did not author the first medical form in the names of Cl, Sanyu Swalleh but Twesigye Florence his workmate at Fort Portal Regional Referral Hospital had written it. That Cl had been assaulted around 23rd February, 2011.

He also confirmed that he was the author of C1X2 dated 28lh August 2012, and that he had written the history that the patient had told him but had not carried out further investigations into the case. That the purpose of writing C1X2 was to assist Cl to get further treatment and not for the complaint before the Tribunal.

RW was the only defence witness brought to rebut the evidence of the two Cs. Fie testified that he was a Police Detective Sgt. Officer No. 33473, who was at that time he testified based at Rwenzori Police Station in Fort Portal. He pointed out that he remembered sometime back interacting with Cl, Swalleh and C2, Friday briefly and he had investigated their case file concerning store breaking and safety, and this was around 2011 when he was at that time attached to Fort Portal Police Station CID Department.

Fie added that the file he handled was about the incident that had taken place at Kenneth Inn where some people had broken into a room where cash was being stored at night, and also broken the safe and taken away around 9 million shillings. That he had gone to Kenneth Inn to carry out investigations after the file had been allocated to him by OC Sentamu, instructing him to visit and examine the scene, establish how the offence had been committed and by whom, gather exhibits if any, arrest the suspects and take them to court after interviewing witnesses.

He however pointed out that he could not remember the date when he visited the scene but that it was in March 2011, and the file was allocated to him a week after the incident but by then some other police officers had already visited the scene.

RW stated further that on reaching Kenneth Inn he found that the padlock to the incident room had not been broken. That he got the information from the owner of the premises, Kobusinge Beatrice that some police offices from Fort Portal Police Station had already visited the scene before. That he called the person with the keys to open the incident room after taking steps to get finger prints from the padlocks. That he examined the inside scene and found that the safe had been broken using a pick axe which he recovered, photographed and took away as an exhibit. That when he inquired about the people who had access to the room, he was told that they were the owner ofthe premises, Kobusinge Beatrice and her son called Robert.

RW added that he had interviewed Robert who was said to have been the first person to enter the room and taken away some money. That Robert alleged that he had locked the room, and had suspicion that the people who had taken the money could have been the ones with the key or who had access to the key and the keys were not kept at Kenneth Inn. That he (RW) had recorded statements from the two suspects but he could not remember the place from where the recording was done. That he had been informed that some of the workers had been arrested by police, especially those who had slept at Kenneth Inn the night when the store was broken into, although their identity was not disclosed to him and as he thought they had already been taken to Fort Portal Police Station, he did not bother to ask where they were taken because his duty of investigations was not looking at that aspect.

That when he reached Fort Portal Police Station, he did not find all the people who had been arrested but only saw Cl whom he was told was one ofthem. That he also saw his statement on file. That he was told by the OC CID to prepare a Police Bond for Cl which he did, and the OC CID signed it a week after his visit to the scene ofthe crime.

That since Cl's statement was on file, RW did not bother to interview Cl again, and that he saw no need of keeping him reporting and that is why his police bond was eventually cancelled out. That he could not tell the period that Cl had spent in the cell but on his release, RW realized that Cl was not happy being in the cell. However, RW emphasized that he did not beat Cl.

During cross-examination, RW confirmed that he had personally given Cl the release on bond but it was nevertheless difficult for him an ordinary person to assess his medical condition at that time.

Both Cl and C2 alleged violation of their right that is totally protected under the Constitution of the Republic of Uganda as well some of the International and Regional (African) human rights legal instruments that Uganda has ratified and adopted for protection of the rights of Ugandan citizens.

To this effect, Article 5 of the **Universal Declaration of Human Rights (UDHR) of 1948** prohibits acts oftorture, stating 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** also similarly prohibits torture, while the **Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment** (in short known as **the CAT)** more explicitly and totally prohibits violation of the same right, clarifying that it must never be violated even under exceptional circumstances whatsoever, whether it is circumstances of a state of war or a threat of war, internal political instability or any other public emergency. **The African Charter on Human and Peoples Rights (ACHPR), 1981** under Article 5 also totally prohibits the aforementioned infringement, stating that "all forms of exploitations 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 ofthe same right and Article 44 provides for the said right to be non-derogable.

It is therefore necessary to determine whether torture or cruel, inhuman or degrading treatment or punishment already so prohibited by human rights law was indeed involved in this case.

The definition oftorture given in the Prohibition and Prevention of Torture Act, 2012 cannot be retrospectively applied to this complaint, as the incident at issue took place before this Act came into force. However, as this Act domesticates the afore-cited CAT, the definition provided under Article 1 ofthis instrument is sufficient in this case. The CAT provides 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 any other person acting in an official capacity.

The treatment that was meted out upon Cl and C2 would constitute a violation of the right to freedom from torture or cruel, inhuman or degrading treatment or punishment if it was on a balance of probability proved. I must therefore seek to determine the issue of whether or not such a violation took place, taking into account the afore-cited definition of torture as provided under Article 1 ofthe CAT. Accordingly, it is important to evaluate the evidence adduced with a view of determining whether the treatment that is alleged to have been meted out onto Cl and C2 by the aforementioned State agents amounted to the level ofseverity that constitutes what could be categorized as a violation that fits into the definition oftorture as given under Article 1 of the CAT and also, in line with the related internationally acceptable conceptualization oftorture.

If not, then I should seek to determine whether the effects ofthe same actions amount to what is categorized as only cruel, inhuman or degrading treatment or punishment. In this respect therefore, I must evaluate the evidence to determine whether the four important ingredients and contours that are identifiable in the CAT definition and the current international concept of torture are proved by the evidence adduced by Cl and C2.

The four ingredients and contours are:

- Whether the alleged actions of assault caused the victims severe pain or suffering, whether physical or mental. - Whether such pain and suffering that the actions caused was intentionally inflicted on the victims. - 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.

Once I find all these ingredients proved, then it will have been established that Cl and C2 were subjected to torture in contravention ofthe laws cited earlier on.

The evidence adduced by Cl has clearly indicated that the RRU operative who beat him made it clear that he was going to beat Cl until he revealed where the stolen money was; and that the man had to put on sun glasses in order to avoid seeing the devastating effects of his actions on Cl, which involved hitting the victim's knees, ankles and back many times using a baton, as well as putting metals between his fingers and tying the fingers together with a rubber strap to inflict maximum pain on Cl.

The treatment that was mated out upon C2 was to some extent similar. As the assailants of the two Cs knew that the effects of their actions on the two victims were very severe and devastating, they carried out their assaults on their victims inside a uniport that was constructed like a grave in order to instill maximum fear in the victims and also, prevent the victim's noise from getting outside the uniport. In addition, a piece of cloth was pushed in C2's mouth to stop him from screaming as a result ofthe excruciating pain for help as he was assaulted for 30 to 40 minutes beating his shoulders, knees and ankles using a baton.

The two Cs testified in their individual capacities and also as witnesses to each other. For instance, Cl witnessed C2 being beaten since the latter was beaten after the former had been beaten, although C2 did not witness the beating of Cl but found him shortly after he had been beaten from the room where they were both beaten from since they were being called in one by one. The two Cs were therefore eye-witnesses to each other's treatment by their assailants, and also witnesses to the immediate after effects of the assault, which both of them described as having been very severe. C2 also described the condition of Cl as having been worse than his own condition after the assault they suffered. The condition of Cl after the assault was also corroborated by the evidence adduced by CsWl, Kisembo Stella Daaki who was also an eyewitness, as he saw the condition when Cl was at Fort Portal Police Station soon after the assault, and Cl told her directly what had happened to him during the assault on his life. CsW2 also confirmed that C2 looked very sick when he was examined.

This well corroborate evidence confirm that both Cl and C2 suffered severe physical pain and were also threatened by their assailants and also psychologically tormented by the conditions inside the uniport from where they were assaulted, to the extent that the aforementioned ingredient of torture was definitely involved in the assault they suffered and the devastating effects it caused upon their lives.

It is also clear that the intention ofthe assault that was earned out was to coerce both Cl and C2 to admit the alleged theft of the money from Kenneth Inn and to reveal where the money was. This confirms the involvement of the aforementioned second and third ingredients of torture regarding the intention and purpose ofthe assault actions.

As the police officers who assaulted the two Cs carried out their actions while on duty, following the orders issued by their superior, the OC of Fort Portal Police Station, and operating within the premises of the police station, the aforementioned fourth ingredient of torture is certainly also involved in this case.

The defence evidence already summarized never discredited the credible evidence adduced by the two Cs and their witnesses. Instead, RW confirmed that indeed the alleged incident at Kenneth Inn did take place, and that he at least found Cl detained at Fort Portal Police Station. Also that he gave him the bond documents and that Cl looked unhappy at the time of his release.

Since the evaluated evidence has clearly indicated that both Cl and C2 were taken from Kenneth Inn and detained at Fort Portal Police Station while they were in good health, just as they had been a little while before when they were performing their normal duties at Kenneth Inn, and as they were release from detention with the kind of injuries and trauma already noted in this decision, then it was incumbent on the Uganda Police Force as the client of R in this matter, to provide a plausible explanation as to the cause of the injuries and trauma that the two Cs suffered. However, since the police failed to provide the necessary explanation, they must therefore be held responsible for the injuries and trauma that the two Cs suffered **[AK 504 vs Turky, (1995) 21 EARR 573; and Vilikova vs Bulgaria, Application No. 41488/98,** refer].

I therefore find and hold that the right ofCl and C2 to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents at Fort Portal Police Station as was alleged by the two Cs. The violation totally contravened Articles 24, 44 and 221 of the Constitution of Uganda and was also out of step with the requirements of the aforementioned International and Regional human rights legal instruments ratified and signed by Uganda thus, binding itself and its agents to observe the provisions contained therein. In this respect therefore, the complaint made by both Cl and C2 succeeds.

## **Issue 2: Whether the Complainants' rights to personal liberty was violated by State agents**

Cl, Sanyu Swalleh testified that he was arrested on 22nd February, 2011 and taken to Fort Portal Police Station together with 15 other Kenneth Inn workers who included Evelyne, Mackeline, Philemon and others. That he was detained at this station together with Agnes until 7th March, 2011 when they were taken to RRU offices at Kireka. That while Agnes was later on released, Cl and three other suspects also brought in from Fort Portal remained in detention here until 10th March 2011, when they were taken back to Fort Portal Police Station where Cl was detained until 17th March, 2011, the day he was released on police bond. The certified copy ofthe release on bond from Fort Portal Police Station which Cl tendered in to this effect was admitted as Cl X2.

C2, Friday Philemon claimed that he was also arrested on 22nd February, 2011 and taken to Fort Portal Police Station where he was detained together with the other suspects arrested from Kenneth Inn. That he was detained here together with Cl, Sanyu Swalleh and Agnes for 6 days until he was released on 28th February, 2011 on police bond which had RRU stamp, leaving Cl Sanyu Swalleh in detention. That he met Cl again after about two or three weeks and Cl told him that he had been taken to RRU offices in Kireka. The police release on bond form that C2 tendered in as evidence in this regard was admitted as C2 XI.

Cl's evidence in respect to the instant issue was corroborated by the testimony of CsWl, Kisembo Stella Daaki, who confirmed that Cl was indeed arrested on 22nd February, 2011 at around 10.00 a.m., adding that he personally went to check on him at Fort Portal Police Station after two days when he also took food to him. He also confirmed that when he went back to Fort Portal Police Station on 27th February, 2011 to check on Cl he did not find him there, and the police officers he met told him that Cl had been transferred to Kampala.

However, during cross-examination CsWl clarified that he was not present when Cl was arrested but was only informed by Cl's wife that Cl was arrested on 22nd February, 2011 which led him to following Cl and finding him at Fort Portal Police Station. In this respect, CsWl testified with honesty hence, enhancing the credibility of his evidence. CsWl added that after two days, he again went back to Fort Portal Police Station because Cl's wife had given him medicine to take to him and he found him still there, and on 17th March, 2011 he went back to Fort Portal Police Station at around 11.00 a.m. and for the third time, and on his request Cl was allowed to come out of the cell but this time walking without anybody supporting him. CsWl also confirmed that Cl was released on that day.

The aforementioned C1X2 confirms the date of 17th March 2011 as being the day when Cl was released from police detention, while C2X2 also confirms the date of 28th February, 2011 as being the day when C2 was released from police detention.

**The Universal Declaration of Human Rights (UDHR), 1948** protects the right to personal liberty under Article 3, where it states that "everyone has the right to life, liberty and security", adding that "no one shall be subjected to arbitrary arrest, detention or exile" (underlining is added to highlight the relevant right). **The International Covenant on Civil and Political Rights (ICCPR) 1976,** which Uganda has signed and ratified, also similarly promotes and protects the aforementioned right under Article 9 (1). However, it also clarifies that the liberty and security of an individual may be curtailed but with this being done on the grounds and procedures established by law. This qualification therefore clarifies the positive nature and status of this right, which is also confirmed by **the African Charter on Human and Peoples' Rights (ACHPR) of 1981,** as it also promotes and protects the same right in a similar manner under Article 6, stating that "every individual shall have the right to liberty and to security of his person", and that "no one may be deprived of this freedom except for reasons and conditions previously laid down by law".

**The Constitution of the Republic of Uganda, 1995** also under Article 23 guarantees the right of personal liberty as a positive right that may be curtailed only under the circumstances that are laid down under Clause 23 (1) . Article 23 (4) specifically requires that any "person arrested or detained upon reasonable suspicion of having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of his or her detention."

This legal context provides the parameters for my resolution of the issue under instant consideration.

As Cl was released on 17th March, 2011, the duration of his detention in total was 24 days. This means 22 days ofillegal detention.

On the other hand, since C2 was released on 28lh February, 2011, this is a total of 7 days of detention, and therefore, 5 days ofillegal detention

As R's side never disputed in any way the evidence adduced by the two Cs to prove violation of their right to personal liberty, the complaint made by the two Cs in this respect therefore succeeds. Accordingly, the afore-cited duration of illegal detention of Cl and C2 by officers of the Uganda Police Force shall be taken into consideration when the issue of remedy to Cl and C2 is presently resolved.

#### **Issue No. 3: Whether R (Attorney General) is liable for the violations**

I have already accepted the confirmed fact that the police officers involved in this matter were individually and severally actively in employment by the State at the time the two violations took place.

In **Muwonge vs Attorney General (1967) E. A 17,** Justice Newbold P. agreed with the submission made to the effect that the principle of law governing the liability of the Attorney General in respect of the acts of a member of the Police Force are precisely the same as those relating to the position of a master's liability for the act of his servant. It was therefore held that **"...a** master is liable for the acts of his servant committed within the course of his employment or, to be more precise in relation to a policeman, within the exercise of his duty. The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal."

Furthermore, in the case of **Jones vs Tower Boots Co. Ltd (1997)2 ALL ER 406,** the court held that "an act is within the course of employment if it is either a wrongful act authorized by the employer or a wrongful and unauthorized mode of doing some act authorized by the employer".

Article 119 (4) (c) of **the Constitution of the Republic of Uganda** and Section 10 of **the Government Proceedings Act** provide for the mandate ofthe Attorney General (R) to represent Government in any civil proceedings to which Government is a party, as has been the case in this matter.

I therefore find and hold the Attorney General to be vicariously liable for all the violations already established in this decision.

### **Issue 4: Whether Cl and C2 are entitled to any remedies**

Article 53(2) (b) of **the 1995 Constitution of Uganda** provides that the Uganda Human Rights Commission, if satisfied that there has been an infringement of a human right or freedom, may order for redress which may include among other forms, payment of compensation. I now evoke these powers.

Since Cl and C2 have on a balance of probalities proved to the satisfaction of the Tribunal that their right of freedom from torture or cruel, inhuman or degrading treatment or punishment and their right to personal liberty were violated by the said State agents, they are therefore entitled to receive compensation from R by way of damages.

However, I must also take into account the case of **Matiya Byalema and Others vs Uganda Transport Company, SSCA No 10 of 1993,** where it was stated that "courts ought to assess the amount of damages taking into account the current value of money in terms of what goods and services it can purchase at present."

I am also taking into consideration the legal principle that states that the basic purpose of damages is to put the victim in the position he would have been had he not suffered the wrong [Dr. Denis Lwamafa -v- Attorney General C/S No.79/1983; and **George Paul Emenyu & Another -v- Attorney General 109/1994 V KALR],**

Furthermore, it is important for me to consider the fact that it has taken almost six years to resolved this complaint since the violations involved were committed in 2011. On the other hand, although the two Cs must be realistically compensated on the basis of the aforementioned considerations, it is also necessary to take cognizance ofthe fact that R's capacity to pay the ever increasing court and Tribunal awards ordered against them is itself limited by the current economic and revenue conditions and circumstances obtaining now in the country.

Let me now handle the two violations separately and in the same order I handled them earlier.

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

In assessing damages in this respect, I am taking into consideration the fact that freedom from torture is a non-derogable right under Article 44 of **the Constitution of Uganda** and therefore, its violation is always considered to be a deliberate and serious breach of a fundamental right guaranteed absolutely by the Constitution, and also to be in contravention of Article 221 of the Constitution, which requires all State security agencies to observe and respect human rights and freedoms in the performance of their functions. With regard to this complaint, the violation also breaches Section 143 of **the UPDF Act 2005,** which as it were, operationalizes the afore-cited Articles ofthe Constitution on the right offreedom from torture and cruel, inhuman or degrading treatment or punishment.

In the case of **Kisembo Milton vs Attorney General UHRC/FPT/005/2004** in which the Complainant was beaten all over the body, pushed against a wall and punched heavily by q Policemen at Bundibugyo Police Station, the Presiding Commissioner Constantine Karusoke awarded the Complainant Shs.3,000,000/= for the violation of his right of freedom from torture, cruel, inhuman and degrading acts.

In the case of **Okello Dickens and Others vs. Attorney General, UHRC/GLU/326/2003,** the three Complainants Dickens Okello, Sam Ebong and Ogwal Tony all were beaten by police men from Apac Police Station, after arresting them on the allegation of holding an illegal gun. Dickens Okello who was not badly beaten like the other two but who was also denied food while

in detention, was on 5th June 2008 awarded Shs.3,000,000/= for torture, by the Presiding Commissioner, Fauzat Mariam Wangadya (Mrs).

The evidence evaluated in this decision has clearly indicated that Cl suffered more severe and devastating assault and effects of torture than what C2 suffered, and as already noted, the latter himself acknowledged this fact. Therefore, as a result of this and also basing on the other aforementioned considerations, I award 5,000,000/= (five million shillings) to Cl and 3,500,000/= (three million five hundred thousand shillings) to C2.

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

In **Walter Nyangas C. vs Attorney General, Complaint No. UHRC/373/2003,** former Commissioner J. M. Aliro Omara held that when assessing the amount of compensation for violation of the right to personal liberty the Tribunal has usually considered the following factors:-

- The duration ofthe illegal detention; and - The circumstances under which the right to personal liberty was violated i.e. ifthere are any mitigating circumstances.

In **Bakaliraku Vincent & Anor vs Attorney General, Complaint No. UHRC 316/2004,** it was held that it was then the practice of the Commission's Tribunal, borrowing from precedents of High Court, to award Complainants Shs.2,000,000= (Two Million Shillings) for illegal detention of every seven (7) days. This amounts to about Ug. Shs. 286,000= per day, which I am rounding up to Ug. Shs. 300,000= per day, given the aforementioned considerations I am taking into account.

Therefore, as Cl was illegally detained for 22 days, I award him a total of Shs. 7,000,000= (seven million shillings only).

And for C2 who was illegally detained for 5 days, I award him Ug. Shs.2,000,000= (two million shillings only).

I therefore order as follows:

## **ORDERS**

- 1. The complaint is wholly allowed. - 2. R (Attorney General) is ordered to pay to Cl, Sanyu Swalleh and C2, Friday Philemon as follows: - a) To Cl, Sanyu Swalleh:

| | TOTAL | | Shs.l7,500,000= Ug. | |-----|-----------------------------------------------------------------|--|----------------------------| | | personal liberty | | 2,000,000= Ug. Shs. | | ii) | of For the violation his right to | | | | | treatment or degrading or punishment | | 3,500,000= Ug. Shs. | | | freedom from torture or cruel, inhuman | | | | i) | of For the violation his right to | | | | To | C2, Friday Philemon: | | | | | liberty | | 7,000,000/= Ug. Shs. | | ii) | of For the violation right personal his to | | | | | treatment or punishment | | 5,000,000/= Ug. Shs. | | | from torture or cruel, inhuman or degrading | | | | i) | of For the violation his right freedom to | | |

- 3. Interest at the rate of 10% per annum to be paid on the total sum of Ug. Shs. 17,500,000= (Uganda Shillings seventeen million five hundred thousand only) 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.