Semujju Zubari v Attorney General (Complaint UHRC 118 of 2007) [2017] UGHRC 2 (24 February 2017)

Full Case Text

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## THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

## **HOLDEN AT JINJA**

### COMPLAINT NO: UHRC/ JJA/118/2007

SEMUJJU ZUBARI....................................

And

ATTORNEY GENERAL ....................................

### BEFORE PRESIDING COMMISSIONER

### HON. DR. KATEBALIRWE AMOOTI WA IRUMBA

### **DECISION**

The Complainant $(C)$ brought this complaint against the Respondent $(R)$ seeking compensation for alleged violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

C alleged that on 18th July 2007, officials from FAULU, a money lending institution went to his home demanding for a balance of money he had borrowed. That when he informed them that he only had 30,000=, they arrested him together with another FAULU client, a one Ssemugooma Dorothy, and they were driven to Mukono and the Manager handed them over to a gentleman. That at that juncture they were separated and kept in different places, and they were later told to negotiate. That Dorothy Ssemugooma was released while C was detained for three days.

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That while in custody, he was manhandled, beaten, forced to kneel on sharp stones and to examine other men's private parts. That he was also beaten and kicked by inmates on the orders of the Local Administration Police, and in the process the inmates squeezed his arm that had fractured sometime back. That he went without food, save for what Ssemugooma Dorothy supplied him with. C further avers that he paid 30,000= and later on another 50,000=, in order to be released on bond but he never received any receipt from the police as acknowledgement of the money he paid, nor did he get released on police bond and that he also never made any statement.

R through his representative, Counsel (RC) Ms. Nanvuma Jane Frances denied the allegations and opted to put up a defence.

#### **Issues:**

The issues to be resolved 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 R (Attorney General) is liable for the violation. - 3. Whether there is any remedy due to the C.

#### **Tribunal hearing process**

The complaint was heard over a period of nearly three and half years, with the first hearing session taking place on 13th June, 2013 and the last one held on 12th August, 2016. C and his first two witnesses namely, Dorothy Semugooma (CW1) and Dr. Katende, the medical expert witness (CW2) testified and were also cross-examined by RCs during the first three hearing sessions. During the third session that took place on 24th October, 2013, the Tribunal accepted the explanation given to the effect that Dr. Kirunda who was expected to testify as C's third witness could not testify on medical ground. Instead, Dr. Micheal Bukari, who on the orders of the Tribunal was authorized by Jinja Hospital to interpret their medical forms that had been written by Dr. Kirunda, testified on 3rd December, 2013 as C's third witness (CW3), although RC Harriet Nalukenge who held brief for RC Jane Francis Nanvuma, declined to cross-examine him purportedly for want of personal conduct of the matter.

During the fifth and sixth hearing sessions that were held on 21st November, 2014 and 18th March, 2015 respectively, C attended together with CW3, Dr. Micheal Bakari but the latter still could not be cross-examined as on both occasion RC Jane Francis Nanvuma was absent with a plausible explanation for the fifth session but for the sixth session, without providing any explanation or apology, at all. Accordingly, during the aforementioned sixth hearing session of 18th March, 2016, R was deemed by the Tribunal to have waived their right to carry out the pending cross-examination, and C's case was therefore closed, with Rs side instructed to open the defence case at the next hearing, while also being warned that failure to do so, would result into the matter being adjourned for delivery of the Tribunal's decision.

In spite of the aforementioned warning given by the Tribunal, R's side was not represented at the seventh hearing session of 20th May, 2016, although they had been duly summoned and acknowledged receipt of the summons. The Tribunal however, accepted the explanation that was provided for their absence and adjourned further the matter for defence. However, as R was represented at the eighth hearing session held on 12th August, 2016 by RC Amusugut Jackie who was appearing in this matter for the very first time and only holding brief without any instructions to proceed with the defence case, the Tribunal adjourned the matter for the Tribunal's decision to be delivered after a period of one month that was allowed for R's side to file their final written submission.

Nevertheless, in spite of the afore-described magnanimity of the Tribunal, at the time of writing this decision, R had not filed their written submission.

Accordingly, since all the parties involved 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 three issues.

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

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

C. Semijiu Zubairi testified that on a day he could not remember but in May 2007, at about 6.30 a.m. two bank officials, a man and a woman went to his home in Napio and told him that the Manager of FAULU wanted to see him. That he informed them about the 2.00 p.m. appointment he had with the said Manager, and wondered why she wanted to see him earlier but he was still ordered to go with them, which he did.

That he was first taken to Kaziwinge to pick Dorothy Semugooma (CW1), and then taken to FAULU bank where they waited for the Manager who came at about 11.00 a.m. and he asked them to call their relatives to bring money and pay the bank loan. That he used to pay Shs. $46,000$ = as weekly deposit on the bank loan but he had defaulted for a week. That they were taken to Mukono Local Administration by the Manager called Teddy and another employee. That they arrived in Mukono at about 5 p.m. and the two of them were taken to Mukono Police Station where they were told by a policeman to take off their shoes and enter a police cell. That the DPC came and asked the policeman who had locked them up, where they had come from. C added that he guessed that the man who came was the DPC according to his uniform and the respect he got from the other Police officers. That C was put into a cell and Semugooma Dorothy was released.

C claimed further that while he was in the cell, the four male inmates whose names he did not know started beating him up as a form of welcoming him, and at that time there was no policeman around. That he tried to fight back by biting one of the inmates that was twisting his arm which had earlier on been injured in an accident.

That he was beaten for a whole night, mostly around his penis, testicles and joints. That some of the inmates beat him using a short stick, while others were boxing him using their fists. That he felt very weak the next day and was also in a lot of pain, especially in his private parts. That he was also very hungry because he had not eaten food, and no officer came to his rescue.

That the next morning, the policeman who was at the counter ordered the suspects to get out of the cell and squat, and later he told them to return to the cell. That the distance they moved was very short and C told the officer about all his pain and the beating he had suffered but the latter simply rubbished it saying that $C$ was undergoing training.

C added that when he returned to the cell, he was ordered by the four inmates to sing and clap but he was not beaten again. He also clarified that he was not given any document on his release and when he asked for one, he was told that he already appeared in their register. That he was

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also told by FAULU officers and the police officer to come back on the $30th$ of the next month. That on the third day of his detention, his wife and Semugooma Dorothy brought and paid to police officer $50,000/$ = for his release. He stated further that he had nothing to eat for the three days he was detained.

He testified further that after his release, he went to Jinja Regional Referral Hospital accompanied by his wife and Semugooma Dorothy, for treatment as his joints and testicles were all swollen and in pain. That he was given medical treatment by Dr. Kirunda who prescribed medication that he purchased.

He stressed that his testicles were still not well and he was still taking the medication. That a doctor had recommended an operation in Jinja but C feared that his testicle might be removed.

C stated further that he could not perform his conjugal duties any more, and one of his wives had left him since he could not have any erection. That his other wife continued to stay with him for the sake of their children. That he also sought treatment from native doctors in vain.

He therefore prayed for compensation for all the expenses he had incurred and also for the fact that he was now impotent since he could not perform his conjugal duties as a husband any more. He clarified that his first child called Kasfa, was born in 1978, and the last one called Adam Mutesasira was born in 1993.

During cross-examination, C clarified that when he went to Mukono Local Administration, he saw a CID officer and knew that he was a CID officer because he was wearing plain clothes; and also that he knew that the person who told them to take off their shoes was a police officer because he was the one that wrote their names in the Police book and so, he concluded that the person was a police officer. He reiterated that he found four men in the Police cell who beat him up; and also pointed out that they did not look like police officers but that they were detainees and they are the ones who beat his testicles. He also stressed that he was sure that the person who ordered them to come out of the cell the next morning was a police officer because he ordered them to squat and also asked his colleague to tell him how many inmates were there, adding that he therefore concluded that the person was therefore a police officer. C also identified the policeman who took them out of the vehicle when they had just arrived at Mukono Police Station as the officer who had asked him for Shs.50,000= for a bond, adding that he was sure this person was a police officer because even when C went back on 30th, it was the same officer he found at the counter.

During re-examination, C asserted that he could differentiate between a Local Administration Police Officer and the other Police Officers, and also clarified further that he had met the Local Administration Police Officers who were wearing maroon uniforms like that of LDUs; and that he had also seen three other people wearing that uniform in Mukono where he was detained. That it was his first time to go to that station but he believed that any one in a police station wearing plain clothes was a CID officer. He also recalled that one officer in uniform had a gun but the one in plain clothes had no gun. C finally sought for compensation for the torture he had suffered.

CW1, Semugooma Dorothy testified that on a date she could not recall but the time when her last child currently in senior 4 was still in primary 5 thus, making it six years before, a woman working with a Bank in Jinja whose name she did not recall, arrested her and C and took them to their bank office on a motorcycle. That at that time C and herself were working together at Kasimugi in Jinja near the taxi park. That the woman who came told them that they were wanted because they had delayed to pay the bank loans. That they were taken to the bank at around 8:00 am and in the afternoon at around 3:00 pm, they were taken to Mukono in a small car belonging to the bank.

That at Mukono, the manager of the bank took them to a place that looked like jail but that she could not identify what kind of jail it was but that it was not a typical prison. That they were ordered to take off their shoes, although she did not know the name of the place they were taken to but it was in Mukono. That at that place she saw a person dressed in a khaki/creamish uniform. That the lady who took them there was asked by a gentleman wearing ordinary clothes, whether the two of them were the accused people, to which she replied in the affirmative. That they got out of the car and were taken into the building by men in uniform that looked like that worn by the police men at Jinja CPS but she could not observe other details because she was frightened.

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She stated further that she pleaded that she be allowed to return home since she had children and had locked them out of the house. That she was released by the man who was at the counter, and this was after the lady had left. That she left $C$ in the cell.

CW1 added that when she got home, she met C's wife and she explained to her what happened and also, stresses the need for money to be paid for his release. She clarified that before she was released at around 6.30 or 7.00 p.m., the men at the police asked for Shs..50,000/= from C and herself in order for them to be released.

She however clarified that before she left police, she did not see anything happen to C because he was already in the cell while she was being released.

The witness testified further that two days later, she returned to the police station together with C's wife taking the money needed for C's release, and they found C in a bad state, especially as he could not walk on his own. That they found him in the cell but he was allowed to get out to meet them. That C told her that policemen had beaten him in the night, after which his fellow inmates also beat him. That one of his legs was severely hurt and that is why he could not walk properly. That he looked to be in severe pain and was also limping. That his back was also swollen, and that CW1 saw this when C was changing into the clothes they had brought for him from home at the time he was released. That she went again to see him after he had left hospital, and he told her that he would be fine and this was after about three days.

CW1 clarified that they paid money to Police Officers for C's bond, and then hired a motorcycle to the main road from where they got a vehicle which took C to hospital accompanied by his wife, while CW1 went to her home but she did not know the name of the hospital where C was taken.

During cross-examination, CW1 explained that she did not know her own age since she did not grow up with her mother but estimated it to be above 40 years because her first child was now 20 years old and she was 20 years old when he was delivered. She also clarified that the lady and the motor cyclist who picked C and herself from their homes were not police officers. Also that the men she saw at Mukono were in police uniforms. She reiterated that she did not see anyone beat C but she found him already beaten by his fellow inmates, and that C also told her that policemen tortured him. She also added that C was on medication for about 2 to 3 months.

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During re-examination, she clarified further that the uniform that was worn by the people at Mukono was similar to that one worn by policemen in Jinja Main Street; and that at the time C was released he was not in the same state as he was at the time he was arrested, because when he was released he was limping and also looked beaten, while at the time when he was arrested he was fine.

CW2, Dr. Katende who testified as a medical expert witness, stated that he held a Masters Degree of Makerere University obtained in 1978, and also had 45 years of work experience. That he had worked in Mulago Hospital from 1978 to 1979, Nagalama Hospital from 1979 to 1983, Kamuli Hospital from 1983 to 1984, and Jinja Hospital from 1984 to 2013 when he retired. That at the time he testified, he was doing private work in Jinja town.

He identified the medical form he interpreted as being a Police Form 3, issued on 15th September 2007 in respect of C, Semujju Zubairi. That he was the one who had examined and treated him, and also written the medical form. That C at that time had an abrasion on the left leg and was in pain. He defined an abrasion as an injury in the skin. He added that C also had pain in the right knee, which he classified as harm. He stated further that the pain in C's hip extended to the back, and that C also had pain in the left shoulder and the left arm, as well as numbness in the 5 left fingers. That he concluded that a blunt weapon, kicks and falls had been used to inflict pain on C, and that the injuries he saw on C were about a month old. That C was given various treatments by other doctors, including Dr. Bakari, Dr. Harim and Dr. Kirunda whom he had worked with for 20 years. That C was also given physiotherapy by a clinic in town. $CW2$ clarified that he had personally signed the document on 15th September, 2007 after examining C, and that he had filled the form on the same day. The form also contained his signature which he appended on 9th August 2011 certifying the photocopy with the Jinja Hospital seal.

He classified C's injuries as harm since the wounds were not deep but they were painful. He also clarified that the treatment that C received was prescribed by Dr. Kirunda. He added that C had recently told him that his wife had divorced him because of sexual failure, that he had testicle pain as well as backache and pain in the right lower limb, though he had not examined them.

CW2 also interpreted other medical notes written by other doctors whose hand writing he identified. He identified one of them as Dr. Kirunda who was by then indisposed in Mulago Hospital and aged about 59 years old. CW2 interpreted Dr. Kirunda's medical form saying that Dr. Kirunda had examined and treated C on 29th September, 2007. That at that time C complained of groin pain because of the kicks he had suffered but he had no pain while passing That Dr. Kirunda had suggested for a scan to be done after one week, and had also urine. prescribed PPF for infections, panadol and neurolovin to treat or repair the nerves, and diclofenac as a pain killer. That he saw C again on 11th October, 2007 and found him with infection of the testicle. That he gave him glevo, an anti-bacterial infection for one week, as well as a pain killer called piroxtam, and also advised C to go for physiotherapy. That he had told him to return for review after one week, and on 20th October 2007, C went back and the doctor said that there was possible traumatic orchitis (dying of the testicle). He however added that there was some improvement and reduced pain in the back, and he had recommended more physiotherapy for another month.

CW2 interpreted yet another medical form, saying that on 9th March 2011, C was attended to by Dr. Arim whose second name CW2 had forgotten but was at Jinja Hospital, and that it was her handwriting on the document. The Dr. Arim had noticed a swollen left leg, and referred C to the surgical clinic and also prescribed for him pain killers and an antibiotic but that she said nothing about the testicle. CW2 said that on 4th April 2011, Dr. Kirunda had talked of pain radiating from the back to the lower limb, and recommended Chinese treatment for C's back and leg, that is acupanture. That Dr. Kirunda had given C neuro tablets and a pain killer and further that on 16th May 2011, Dr. Kirunda noticed mild pressure of 160/90, and a swollen left foot, and prescribed drugs against pressure as well as a pain killer, and also ordered for a blood slide.

CW2 interpreted the last medical form testifying that on 29th May 2013, Dr. Bakari noticed a swollen lower limb which he called 'thrombothemitis', and prescribed for C some anti-biotics, pain killer and neuron biotic.

CW2 summarized C's condition as continuous backache, lower right limb pain and testicle pain, and concluded that the injuries were not all expected to be cured by then. That the limbs could affect C in such a way that he cannot run and also do his work normally, because the back

supports the body and so, the body was now in danger. He further described C's condition as a permanent disability.

He also remembered and explained that the second name of Dr. Arim was Wakabi, and that Dr. Kirunda had suffered a mental problem and had therefore been sent on forced leave because he had been barred from appearing in courts to testify.

The Police Form 3 and the other medical forms that CW2 interpreted were admitted together with $RC$ 's consent as C's first exhibit (CX1).

During cross-examination, CW2 confirmed that he received the aforementioned Police Form 3 on 15th September, 2007 while he had examined C on 11th September, 2007; and added that it was the first time he was examining C. He pointed out that he knew C's current medical status, adding that apart from the Police Form 3, C had copies of other medical reports because he has seen them as he examined C again but clarified that in Jinja Hospital, it was a practice that the hospital does not keep a record of the documents they give to patients.

CW2 stressed that he had thoroughly examined C and classified the degree of his injuries as harm but this did not mean that the findings amounted to soft tissue injuries. That by abrasion, he meant light injury to the skin hence, it was soft tissue injuries which are not grave injuries. He also reiterated that he was not the one who had carried out the physiotherapy because C had gone to a private clinic in town for this treatment, adding that he did not get any report from there but stressed that physiotherapists and doctors together determine the extent of damage to the patient.

CW2 asserted firmly that C's injuries were sustained about a month before his examination. During re-examination he also explained further that the soft tissue injury on C was only on the leg. That the role of the physiotherapist was to relieve pain in the arm, back and shoulder but he does not determine the degree of injury, the doctor does. He stressed that he had determined the one month duration of C's injuries by the time when C went to him, basing on the history and also using his medical experience.

CW3, Bakaali Michael testified that he was working in Jinja Hospital and he had served as a Senior Medical Clinical Officer since 2009. That his duty was to take history after receiving patients, examine and diagnose and if possible, treat them or refer them to special clinics, adding that he had been doing this since $1^{st}$ January, 1995.

He confirmed that he was one of the doctors who had attended to C. That on 25th September. 2007, C went to his clinic at the hospital with a medical form headed Ministry of Health, Jinja Hospital. That CW3 studied the previous medical form and asked C what had happened to him. prompting C to inform him that he had been assaulted and as a result he had sustained multiple body injuries, although he had not stated who had assaulted him. That he had examined him and established that C had a paralyzed left arm which also had bruises. That he sent C to the physiotherapy department. That C was in pain and the left arm was paralyzed. CW3 noted that with such nerve injury, one could not easily recover but that physiotherapy was to determine whether C's injuries was a permanent disability or not.

The medical form interpreted by CW3 was admitted with RC's consent as C's second exhibit $(CX2)$ .

CW3 also noted that C's injuries were about a month old, and added that if more evidence showed that the harm happened three months back, then C would have no case. On the other hand however C stated that he was arrested and taken to Jinja police in May, 2007 and that he went to hospital after his release from detention where he spent three days. Since CW3 interpreted the medical documents dated September 2007, C's injuries that were said to have been examined after about a month should have been sustained in August 2007.

I note the fact that C testified on $13th$ June, 2013 saying that he had been assaulted in 2007. I therefore find it necessary to take into account the fact that C testified six years after he was assaulted. Moreover, as C did not keep written records on this incident, it would be unreasonable to expect him as a human being to remember and calculate precisely the exact dates and duration involved in this traumatizing incident that tool place six years before. Furthermore, it is not CW3 to determine whether C had a case or not because of the difference in the months stated regarding when the assault took place.

In this respect, I am therefore applying the legal principle stated in the case of **Shaktali Abdull** Vs. Sadrudin Merali, (SC) Civil Appeal No 32/94), which has it that "where there are

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contradictions in the evidence of a witness, the defining factor in law is whether they were such major contradictions as to indicate that the witness deliberately told lies to court."

I therefore regard the inconsistency to do with the duration of C's injuries by the time he was examined as being a minor discrepancy which does not in any way fatally affect the evidence adduced by C and his witnesses. This also applies to the medical evidence already evaluated, which I regards to be very crucial in this matter, although it is not a legal requirement to depend on medical evidance to prove torture, as was stated in *Fred Kainamura & Ors Vs Attorney* General & Ors 1994 KALR 92, in which Justice Okello held that, "it was not a requirement of the law that every allegation of assault must be proved by medical evidence. Medical evidence helps to prove the gravity of assault."

Since RC failed to call defence witnesses and as she never even filed any written submission to rebut C's evidence, the principle of law applicable in this regard is laid down in the case of Edeku vs Attorney General ('995) V1 KALR 24 stating that whenever contentions issues are raised and argued before courts of law or tribunals and they are not rebutted by evidence adduced by the defence or respondent's side to successfully discredit and disprove the plaintiff's or complainant's evidence, then such issues are deemed to have been admitted by the defendant or respondent.

Accordingly, R ought to accept the liability for the action of their agents that resulted into all that happened to the C as proved. This is in line with the legal principle which requires that where an individual is arrested in good health and then taken into custody but is later on found with an injury or injuries, or is found dead while in custody, then it is incumbent upon the particular security agency concerned to provide a plausible explanation as to the cause of the injury or injuries on the relevant person, or in the event of death while in custody, to give an explanation as to the cause of death, failing which the relevant security agency must be held responsible. [See Akdemiz and Others Vs. Turkey (23954/94) (2001) ECHR 349 (31ST May 2001): Akisov Vs. Turkey, (1995) 21 EA 573; and Velikova Vs. Bulgaria, Application No. 41488/98 ECHR.

The violation that C claimed to have suffered under the issue being considered, is protected by Uganda's Constitution and other relevant Ugandan laws as well as some of the International and

Regional (African) human rights instruments that Uganda has signed and adopted. To this effect, Article 5 of the Universal Declaration of Human Rights (UDHR) of 1948 prohibits acts of torture, 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 of the same right, and Article 44 provides for the said right to be non-derogable.

It is therefore necessary to determine whether the right to freedom from torture or cruel, inhuman or degrading treatment or punishment that is so guaranteed by human rights law was indeed violated in this case.

The aforementioned CAT, defines "torture" under Article 1 as:

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 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.

In order for me to determine the issue of whether or not torture took place, I am therefore taking into account the afore-cited definition of torture. I therefore find it necessary to evaluate the evidence adduced with a view of determining whether the treatment that is alleged to have been meted out onto C by the aforementioned State agents amounted to the level of severity that constitutes what could be categorized as a violation that fits into the definition of torture as given under Article 1 of the CAT and also, in line with the related internationally acceptable conceptualization of torture.

If not, then I shall determine whether the effects of the same actions amount to what is categorized as only cruel, inhuman or degrading treatment or punishment. In this connection therefore, I must evaluate the evidence to determine whether the four important ingredients that are identifiable in the afore-cited CAT definition and the current international concept of torture are proved by the evidence adduced by C. The four ingredients are:

- Whether the alleged actions of assault caused the victim severe pain or suffering, i. whether physical or mental. - $\ddot{\text{ii}}$ . Whether such pain and suffering that the acts caused was intentionally inflicted on the victims. - iii. 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 iv. consent or acquiesce, of a public official or other person acting in official capacity.

The evidence added by C and his witnesses has on a balance of probabilities credibly confirmed that the assault that C suffered did devastatingly affect his penis, testacles and joints, leading to serious effects including paralysis and general body weakness, such that when CW1 saw him after his release from detention, he could hardly walk well and he had therefore to be taken to hospital by his wife, where the expert witnesses CW2 and CW3 also confirmed the gravity of Cs injuries. For instance, CW3 concluded that the injuries were so serious that they would take some time to heal. C had also reported to CW3 that he was unable to perform his conjugal duties due to the effects of the injuries, resulting into one of his wives abandoning him. There is therefore no doubt that C was not only afflicted by excruciating physical pain but also, by psychological suffering.

However, C's claim of erectile disfunction was not supported by any scientific medical evidence or by evidence adduced credibly by another witness like the wife whom he claimed to divorced him because he could no longer perform his conjugal duties.

Nevertheless, the evaluated evidence confirms that the first ingredient of torture identified in the afore-cited CAT definition was indeed involved in the assault that C suffered and its effects on him.

It has been clarified that when C was being arrested, he was told that the bank needed its money which he had failed to pay, and while at the bank, he was told to call his relatives to collect money and pay the loan. I am therefore convinced that the Manager of FAULU bank took C to police to be intimidated and therefore forced to pay the money that he owed to the bank, and also to be punished for nonpayment. CW1 stated that when C and CW1 were taken to police, a police officer asked the Manager of FAULU bank, whether they were the people who had defaulted on bank loans, which points to the fact that the manager had already agreed with the police officer on how the two arrested people were to be handled.

Therefore, the Police actions were not only intentional but also purposeful as pointed out above.

C was taken to Mukono Police Station by the Manager of FAULU bank and he was registered in the book which I believe must have been the police lock up register. He was told to remove his shoes and then detained in the police cell for three days. This is confirmed by CW1 who was together with C, although for her she was not detained for long. CW1 was also present with C's wife when C was released.

In addition, C stated that as he was being beaten by the inmates to welcome him in the detention cell, no police officer came to his rescue yet, the established and expected practice is for police cells to have cell guards. C also added that in the morning when the suspects were called out, C informed the police officer who conducted the parade about the beating he had suffered in the cell but the officer simply answered him callously that he was undergoing training. This showed

that the officer allowed such illegal acts to happen in the cells and so, he acquiesced the illegal actions of the inmates.

There is therefore no doubt that the above evidence also confirms the involvement of the fourth ingredient of torture in the incident under consideration, as the police officers who detained C were doing their official duties, and the officer who failed to help C when he reported to him the assault he had suffered in the cell, clearly abused his powers and also neglected his duties.

I therefore find and hold that on balance, there is a high probability that C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents thus, contravening Articles 24, 44 and 221 of the Constitution of Uganda and the relevant provisions of the aforementioned International and Regional human rights instruments ratified and signed by Uganda.

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

## Issue No. 2: Whether R (Attorney General) is liable for the violation

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

In Muwonge V 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. 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 V 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".

Since the above first issue has been resolved in favour of C and against R's clients, I am therefore holding R vicariously liable for the acts of the police officers of Mukono Police Station who violated C's right.

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

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

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

Since C has proved to the satisfaction of the Tribunal that his aforementioned right was violated by the said State agent, he is therefore entitled to receive compensation from R by way of damages.

I shall however, determine the quantum of the damages to be ordered taking 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 has it taht 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; George Paul Emenyu & Another -v- Attorney General 109/1994 V KALR].

The fact that C's right that was violated is totally protected by law as a non-derogable right, is also taken into consideration.

Furthermore, there was no evidence brought to the Tribunal indicating that C disobeved Police orders in any way to warrant any use of force upon him.

In Omola Moses vs. Attorney General UHRC/SRT/206/2005, the Complainant was beaten by the O/C Kamodi Police Station with a stick and he suffered soft tissue injuries on the left arm, back and buttocks. The injuries were classified as harm and the Tribunal awarded the Complainant Ug. Shs. 3,000,000/- as compensation for the violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment.

Furthermore, in the case of Olupot Stephen –and-Attorney General, UHRC/591/2003, the Complainant Stephen Olupot proved to the satisfaction of the Commission Tribunal that was presided over by former Commissioner Veronica Eragu Bitchetero, that he had indeed been beaten by the Gombolola Internal Security Officer (GISO) called Atari and Special Police Constable (SPC) Okideng. The two men beat Olupot with the intention of forcing him to accept that he was the Mr. Okwalinga whom the former two security operatives were seeking to apprehend on the suspicion of having carried out some robberies. The Doctor who examined Olupot, confirmed that he had suffered injuries like cuts over his body as a result of the beating, and that he had also been admitted at Soroti Hospital for five (5) days. The Doctor categorized the injuries as **harm** and clarified that they could not therefore cause permanent disability. The Presiding Commissioner awarded the Complainant a sum of Shs.5,000,000/ $=$ (shillings five million only) as general damages in compensation for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

Although in the case before me, CW2 classified Cs injuries as harm, CW3 also indicated that C had suffered paralysis of his arm and he had also sent him to the physiotherapy department for specialized treatment. He also noted that with the involvement of the nerve, C's arm could not easily recover. Although he did not classify the injuries, he nevertheless stated that the physiotherapist was to determine whether C would suffer a permanent disability or not. The physiotherapist however, did not testify before the Tribunal to clarify this.

Nevertheless, comparing all these facts with the facts in the above cited two precedent cases. I am constrained to conclude that although the injuries that C suffered were classified as harm, still C generally suffered more complications, including paralysis of the arm, than the Complainants in the two cited precedent cases suffered. I am therefore awarding to C Ug. Shs.8,000,000/ $=$ as general damage for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment, and accordingly ordering as follows:

## **ORDERS**

- 1. The complaint is wholly allowed. - 2. R (Attorney General) is ordered to pay to C, Semujju Zubairia a total of Ug. Shs. 8,000,000= (Uganda Shillings eight million shillings only) for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. Interest at the current court rate to be paid on the total sum of Ug. Shs. $8,000,000=$ (Uganda Shillings eight 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 of this decision if not satisfied with the decision of this Tribunal.

So it is ordered.

DATED AT JINJA ON THIS. 24TH DAY OF EBRUARY, 2017.

**SIGNED BY:** DR. KATEBALIRWE AMOOTI WA IRUMBA

PRESIDING COMMISSIONER