Senfuka Kaggwa v Attorney General (Complaint UHRC 180 of 2009) [2019] UGHRC 14 (14 August 2019)


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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT KAMPALA COMPLAINT NO UHRC/180/2009

SSENFUMA KAGGWA:::::::::::::::::::::::::::COMPLAINANT $-$ AND $-$ ATTORNEY GENERAL:::::::::::::::::::::::::::::RESPONDENT

## DECISION

(BEFORE HON. COMMISSIONER MEDDIE B. MULUMBA)

Ssenfuma Kaggwa (the Complainant), 50 yrs, a resident of Nansana 7/8 I Village, Nansana 7/8 Ochieng Ward Parish, Nansana Town Council, Kyadondo County, Wakiso District alleges that on $3/11/2009$ while on remand at Kiboga Prison, he was taken to dig in the prison digging in the shamba he shamba. That while was

slapped and caned all over his body for kicked, failure to keep up to the required digging pace. - He both the prison warders further alleges that and Katikiros beat him in the presence of the District Prison Commander (DPC) who had come to the shamba.

The matter came up for hearing on $11/03/2019$ . The Respondent was represented by State Attorney Tusubira Sam. At the hearing, the following issues were framed for determination:-

I. Whether the Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment was violated?

II. Whether the Respondent is vicariously liable? III. Whether there are any remedies available to the Complainant?

The Complainant testified in person and called two Dr Otim Robert Owera and CW II witnesses CW I Damulira Jackson Musisi. The Respondent did not call leaned witnesses but State Attorney made oral submissions in defence.

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I will resolve the Issues in the order they were raised.

In regards to Issue I, the Complainant testified that on the 29 or 30<sup>th</sup> October 2009 he was remanded to Kiboga Prison over murder allegations. While on remand he was taken by 3 prison warders to the Prison shamba to dig. While digging he was randomly kicked on the lower abdomen and beaten with sticks on the arms, backs and legs by the two of the prison warders. He could not recall the names of the prison warders who beat him but could recall one Byamukama who saved him from the beatings. Byamukama did not beat him. He did not know why beat him but he thinks that it was because he refused to cut banana fibres. He was the only one who was set to dig.

Upon cross examination he stated that before his remand to Prison he was already sick from malaria and He was beaten a lot. After release sought ulcers. medical treatment from ACTV. He also went to Mukisa given medical for ${\tt treatment}$ $\quad\text{but}\quad$ was $\quad\text{not}\quad$ Clinic documents.

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CW I testified that he is a Senior Medical Officer for with African Center Treatment working and Rehabilitation of Torture Victims (ACTV). He has been working as a Medical Coordinator at ACTV since August 2018. The Complainant was examined by Dr Muwa Paul who $left$ ACTV. has since Upon examination. the Complainant had deep tenderness of the lower back, knee and ankle joints with a permanent disability of 10%. In his opinion one year would have been enough to enable the Complainant get healed.

Upon cross examination, he clarified that he was not the author of Exhibit I. He further clarified that in his opinion, the Complainant should have recovered $from$ the injuries. The Complainant remained an outpatient at ACTV for three years.

$\mathbf{C}\mathbf{W}$ $\prod$ testified that the Complainant is his elder brother. Around 2008 or 2009 he received information that the Complainant had been arrested over a land conflict. He went to visit the Complainant at Kiboga

Prison. Upon reaching the Prison he was informed by the Prison warders that the Complainant had been taken to a Hospital near the Prison. As he was leaving the Prison, he saw the Complainant being supported to walk by two fellow prison inmates who were escorted by Prison warders. He asked the Complainant what was The Complainant informed him that he had been wrong. badly beaten by prison warders while digging in the shamba.

Upon cross examination he stated that he visited the Complainant once in Hospital.

The right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected under Article 24 of the Constitution of the Republic of $(a)$ of the Constitution Article $44$ Uganda 1995. prohibits derogation from the right (Ntengo Kawuki Ronald and Uganda Wildlife Authority UHRC/MSK/27/2012; *Attorney* General *Katembo Ican Pierre* and UHRC/MSK/13/2012; CEHURD & Kabale Benon vs Attorney General HCCS 94 of 2015). In Salvatory Abuki and

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Another SCCA 1 of 1998 it was held that Article 24 of Constitution seeks protect citizens the $to$ $from$ several different conditions:

- $i$ . torture: - ii. *cruel treatment;* - iii. <pre>cruel punishment;</pre> - iv. *inhuman treatment:* - *inhuman* punishment; $V$ . - vi. degrading treatment and - vii. Degrading punishment

The right $to$ freedom from torture, inhuman and degrading treatment is also provided for international such Article $\overline{5}$ Instruments $of$ the human Rights Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and the African Charter on Human and People's Rights under Article 5.

In the present case, the Complainant bears the burden to prove that priosn warders attached to Kiboga Priosn violated his right to freedom from torture [Section 101 (1) (2) of the Evidence Act: Christopher Bamweyana vs Herman Byanguye HCCA 21 of 2017]. The Complainant alleges that while digging in the prison shamba at Kiboga Prison he was randomly kicked on the lower abdomen and beaten with sticks on the arms, backs and legs by the two of the prison warders. CW II did not see the Complainant being subjected to beatings.

In oral submission learned State Attorney pointed out that the Complainant should be clear of the pain he suffered. The testimony of CW I is hearsay and his evidence should not be relied upon. $\operatorname{In}$ response Commission Counsel Okwong Dorothy submitted that the testimony of CW II is relevant since he visited the Complainant in detention.

I have considered the evidence before this Tribunal and the oral submissions of both Counsel. From the evidence on record the Complainant was remanded to Kiboga Prison and while on remand he was taken to the

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Prison shamba by two Prison warders on $3/11/2009$ . While digging he was randomly kicked on the lower abdomen and beaten with sticks on the arms, backs and legs by the Prison warders because he was digging slowly. CW II did not witness the Complainant being beaten by the Prison warders. He was only told by the Complainant that he had been badly beaten by the the prison warders from prison shamba. $T_n$ his testimony, the Complainant stated that as a result of the beatings meted upon him by the prison authorities he still suffers pain in his right leg. The law is clear that no particular number of witnesses shall be required for the proof of any fact (see Section 133 of the Evidence Act Cap 6, Akot Catherine vs Attorney General IICCA 2/2017). In the instant complaint the 2nd-Complainant maintained in his testimony that he was shot by uniformed WPDF soldiers. Torture is extreme pain $bv$ physical caused someone $\overline{or}$ something. especially as a punishment or as a way to make someone say something or do something *(see Businge David and*) Attorney General & Asiimwe Yasin UHRC/FPT/13/2006).

The Respondent or his agents cannot give any excuse for failing to respect, protect, promote and fulfill the applicants' right to freedom from torture, cruel, inhuman and degrading treatment or punishment since the said right is absolute and not qualified *(Article)* 221 Constitution of the Republic of Uganda 1995; Hon Okupa Ellijah & 2020 Others vs Attorney General & 3 Others IICMC 14 of $2005$ ).

I therefore hold Issue I in the affirmative.

## I will handle Issues II and III concurrently.

A master is liable for the tortuous acts committed by its servant in the course of his employment (Paul *Byekwaso vs Attorney General CA 10 of 2002).* In the instant case, the Prison warders were acting within the course of their employment, they were not on a their own but in the course frolic $of$ $\quad\text{ of }\quad$ their Consequently, I find that Respondent is employment. vicariously liable for the prison warders attached to Kiboga Prison.

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The Complainant is entitled to a remedy which may include compensation. *[see the Universal Declaration* of Human Rights (UDIIR) Article 8; Articles 50 (1), 53 $(2)$ (b) and (c) of the Constitution of the Republic of Uganda 1995: Masiko Augustine and Attorney General UHRC/FP/60/2007; Akugizibwe Amon and Attorney General UHRC/47/2006: Bagume John and Attorney *General* UHRC/JJA/10/2007; Kansiime John and Attorney General UHRC/MBR/053/2008; Bashishana Francis and Attorney UHRC/MBA/117/2005; Nyitho $Alex$ Geln *General* and Attorney General UHRC/GLU/210/2004; Haruna Byamukama and Attorney General UHRC/130/2007].

In assessing the amount of damages I will take into consideration that freedom from torture is an absolute rights, the nature and extent of the torture; the nature and the extent of injuries resulting from the torture (Ali Faraj and Attorney General UHRC/254/2003; Ojok Alex and Attorney General $UHRC/G/3/2005$ ; Emaju *Charles and Attorney General UNRC/SRT/18/2007).* The Complainant testified that as a result of the beatings

meted upon him he still gets back and joint pains. He however did not have medical documents to support this claim. In the opinion of CW I the Complainant should have been healed from the injuries sustained.

I therefore deem a figure of UGX 4,000,000/= (Uganda shillings four million only) as nominal damages for the violation of his right to freedom from torture as $(a)$ protected under Article $24$ and $\overline{44}$ $\overline{of}$ the Constitution of the Republic of Uganda 1995.

## **ORDERS**

The Tribunal hereby orders as follows:

- 1. The complaint is allowed. - 2. The Respondent is ordered to Ssenfuma to pay the Complainant $\overline{\text{of}}$ **UGX** Kaggwa $\overline{a}$ sum 4,000,000/= (Uganda shillings four million only) as general damages for the violation of his right to freedom from torture as protected under Article $24$ and $44$ (a) of the Constitution of the Republic of Uganda 1995.

3. The said sum shall carry interest at 10% per annum from the date of the decision until payment in full.

4. Each party shall bear its own costs.

Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within 30 days from the date hereof.

Dated at KAMPALA this $\cdots$ of $\cdots$ of $\cdots$ 2019.

m. Lunn

MEDDIE B. MULUMBA PRESIDING COMMISSIONER