Steady v Attorney General (Complaint No. FPT/59/2011) [2022] UGHRC 15 (19 January 2022)

Full Case Text

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# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION HOLDEN AT FORTPORTAL COMPLAINT NO. FPT/59/2011**

**STEADY AMOS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

**AND**

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

## **{BEFORE HON. COMMISSIONER SHIFRAH LUKWAGO} DECISION**

This is a complaint brought by Steady Amos against the Attorney General in which he alleges the violation of his right to Freedom from Torture, Cruel, Inhuman and Degrading Treatment or Punishment and freedom from forced labour. The complainant alleges that on 3rd July 2010, two soldiers attached to Budiba Army Detach went to his home and arrested him. That during the course of arrest, the soldiers beat him indiscriminately all over the body. The Complainant further stated that he was being accused of being involved in rebel activities and for reprimanding his son. That he was later detained at the army barracks during which he was made to slash the barracks compound. The Respondent's counsel Mr. Ndibarema Grace denied the respondent's allegations.

#### **Issues:**

The issues for determination before this tribunal are:

- (i) Whether the respondent's Agents (Attorney General) violated the complainant's right to freedom from torture or cruel, inhuman and degrading treatment or punishment. - (ii) Whether the respondent's agents deprived the complainant of his right to freedom from slaveiy and servitude. - (iii) Whether the respondent (Attorney General) is liable for the violations - (iv) Whether the complainant is entitled to the remedies sought.

Before resolving the above issues, I wish to state that the following;

First and foremost, this matter was heard by Hon. Dr. Patricia Achan Okiria as she then was. The decision is therefore based on the record of proceedings prepared by her.

Secondly, in this matter the respondent never called any witnesses in defense of the matter nor did he file written submissions despite several adjournments to do the same. The complainant and his witnesses testified and were cross examined by respondent's counsel. However, I note that this did not do away with the complainant's responsibility to prove his case before the Tribunal on the balance of probabilities.

Under S.**101(1) of the Evidence Act Cap 6,** it is stated that "Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that those facts exist."

**Under S.102 of the Evidence Act,** it is stated that "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

I now turn to the issues:

**1. Whether the respondent's servants violated the complainant's right to protection against torture, cruel, inhuman and degrading treatment.**

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) gives an internationally agreed legal definition of torture by stating that;

"Torture means 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 other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

Considering National Instruments, the Prevention and Prohibition of Torture Act, 2012 under section 3 defines 'torture' as;

"any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as obtaining information or a confession from the person or any other person, punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit; or intimidating or coercing the person or any other person to do, or to refrain from doing, any act".

The Constitution of the Republic of Uganda under Article 24 clearly prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

The International Covenant on Civil and Political Rights (ICCPR) 1996, which prohibits torture or cruel, inhuman and degrading treatment or punishment under Article 7, which states; "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The United Nations' Universal Declaration of Human Rights( UDHR) has evolved into treaty obligations through the International Covenant on Civil and Political Rights of 1966 (ICCPR)."Article 7 of the ICCPR re-echoes clearly Article 3 of the UDHR, and includes another prohibition deriving from the trial of the Nazi doctors at Nuremberg". Article 7 of the Covenant provides that;

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The Covenant states that while some rights may be the subject of derogation during a "time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed," the provisions of Article 7 prohibiting torture and ill-treatment are not subject to derogation." In addition to Article 7's prohibition against torture and ill treatment, Article 10 of the Covenant requires that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

Similarly, the Universal Declaration of Human Rights (UDHR) 1948 states under Article 5 that; "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until 18th September, 2012 upon the commencement of the Prevention and Prohibition of Torture Act, 2012. However, since the law cannot be applied retrospectively, the only definition that will be adopted in this matter is the one provided in the UNCAT cited above.

The actions committed against the complainant would constitute "torture" if the same were proved taking into account the definition of torture as provided under Article 1 of the CAT.

The Convention Against Torture imposes certain obligations to prevent and enforce the prohibition against torture and cruel, inhuman, or degrading treatment. Among other obligations, State parties that have adopted the Convention Against Torture must ensure that "any statement which is established to have been made as a result of torture ... not be invoked as evidence in any proceedings." As with the Covenant, the Convention Against Torture provides that the prohibition against torture is a non derogable obligation, and no order from a superior officer or a public authority may be invoked as a justification of torture." Article 1 of the Convention Against Torture is widely referenced by international bodies and has been deemed the de facto "first port of call" for those seeking a definition of torture."

The Uganda Human Rights Commission Tribunal has subsequently adopted an evolving standard for determining when acts constitute torture, a standard that takes into account present-day conditions and human rights norms. This Tribunal emphasizes that the prohibition against torture enshrines one of the most fundamental values of democratic societies that must be respected even in the most difficult circumstances, the Tribunal was established to protect human rights and fundamental liberties, which "correspondingly and inevitably requires greater firmness in addressing breaches ofthe fundamental values of democratic societies." I observe that the 1995 Constitution of the republic of Uganda is a "living document," and I would like to express that "certain acts which were classified in the past as 'inhuman and degrading treatment1 as opposed to 'torture' could be classified differently in the future." In making a determination regarding whether torture or cruel, inhuman, or degrading treatment has occurred, the Tribunal has considered;

a) The nature of the act or acts involved;

b) The severity of the physical and/or mental harm suffered as a result of the acts;

c) The purpose of the actor, evidence on the purpose and Intent of torture.

d) The official status and/or individual responsibility of the actor.

International human rights scholars have also analyzed these elements and have offered commentary on how they should be applied to distinguish torture and inhuman or degrading conduct. These four elements, and the jurisprudence that has interpreted them, are discussed more below in the evaluation of evidence.

I shall evaluate the evidence adduced in order to determine whether the allegations by the complainant amounted to the level of severity that constitutes what would be categorized as torture or whether the effects of the same actions amount to what is categorized as cruel, inhuman or degrading treatment or punishment.

Once the above elements are proved against the Respondent's agents, then it can be established that the Complainant was indeed subjected to torture contrary to the laws of Uganda.

In **Fred Tumuramye -and- Attorney General UHRC NO. 264 of 1999,** Commissioner Aliro Omara outlined the central contours of torture as stated in the CAT to bear the following: " 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 other person acting in an official capacity.

#### **Evidence**

It's the Complainant's testimony that on 3rd July, 2010 at about 9:30pm while at home guiding his son Kanyangoma Bahati who had developed a habit of stealing, he ran out and returned with two armed UPDF soldiers. That they started beating him and he was taken to the trading centre of Budiba where the beating continued. That the defence secretary a one Basiima intervened but the soldiers refused to release him and instead took him to the barracks. That he was mainly beaten on the back. That he was detained at the barracks and in the night, he was told to slash the compound while being beaten.

### (b) **Evidence on the Nature of the Act**

The UN Special Rapporteur's 1986 report describes the conditions under which torture often occurs, including practices such as incommunicado detention and states of emergency, where "preventative detention" or detention without procedural safeguards to protect the rights of detainees has led to circumstances where torture can become psychologically and institutionally accepted." The Special Rapporteur's report includes a listing of the types of actions that constitute torture. Some of the acts on the list are acts of commission, such as beating, burning, suspension, suffocation, such as by near-drowning in water, and exposure to excessive light or noise. There are also acts of omission, such as prolonged denial of rest, sleep, food, sufficient hygiene, or medical assistance, and prolonged isolation and sensory deprivation. The African Commission on Human and Peoples' Rights and the United Nations Human Rights Committee have rendered decisions in similar cases involving findings of torture and/or cruel, inhuman, or degrading treatment or punishment. Case-by-case determinations have repeatedly emphasized the importance of considering the totality of the circumstances and the cumulative effects of treatment and/or conditions in reaching a conclusion regarding whether acts violate international law.

In this case the Complainant explains that;

*"My son returned with two armed UPDF soldiers who started beating me from outside the house. They took me to Budiba trading centre from where the beating continued until the defence secretary intervened. The soldiers refused to release me but instead took me to the barracks from where the beating continued. I was made to slash the compound from midnight while being beaten the whole night. In the morning, the defence secretary returned again requesting for my release and I was released and he took me for treatment at a dispensary."*

During cross examination by counsel for the respondent, the complainant stated that he had no maternal relative at the Barracks. That the people who arrested him were his son's friends and never told him the reason of arrest but one of them was called Kanyarungeya.

The complainant's eye witness **(CW2)** Omuhereza Basiima testified that on 3rd July 2010 at about 10:00pm, while he was patrolling the village, he heard an alarm. That he ran to the direction from where the alarm was coming from and found two soldiers who had arrested Amos Steady and his son.

He added as follows;

*"They were beating him with sticks and gun butts. I asked them to stop beating the complainant and they obliged. I requested them to give him to me but they refused and instead took him to the Barracks. Ifeared to follow so I went there in the morning. When I reached there, I found the complainant slashing the compound while being beaten. I requested for his release and he was given to me and I took him home. The complainant was in a bad state, his shirt wasfull of blood. He went to Hospitalfor treatment when I left him. "*

During cross examination, CW2 confirmed that he was patrolling the area that night when he found the soldiers beating Steady. That the soldiers who were beating the complainant knew CW2 as they used to patrol the village together.

That Steady was beaten outside the patrol time which used to begin at 10:30pm and the patrol still goes on to date for security purposes. He further stated that it is not a normal practice for the army to interfere in domestic matters and what the soldiers did was on their own though their bosses knew that they were on patrol. He also confirmed that he witnessed the beating and the complainant was beaten using sticks and gun butts.

When re-examined by Commission Counsel, the witness stated that the patrol usually begins at 10:30pm and that he knew that the soldiers were coming from Budiba Army Barracks. He confirmed that he was aware that when soldiers get out of the Barracks they are on official duty.

The Complainant's testimony was further corroborated by the evidence of (CW3) an expert witness a one Dr. Busingye Priscilla a medical director, statistician and gynaecologist at Vivika Hospital. She is a holder of a MBCHB from Muk in 2003 and M. Med Obs/Gyn from Muk in 2008. She stated that she didn't know the complainant but the medical report was from their hospital since it had a stamp of the institution. She was therefore called to interprete the medical report.

She stated as follows;

*"The medical report bearing the name of Steady Amos aged 54 years is dated 5th April [2011.](2011. It)It was intended for the patient to get treatment. The history is that the patient was assaulted by soldiers at his home. It happened eight months before he came to the hospital. He was experiencing backache, chest pain and abdominal pain especially in the flanks. He said the pain was also there during the passing of urine and that he was treated but got no relief. "*

She further testified that upon examination, they found that he had no fever, no yellowness of eyes and was not anaemic. That he was not swollen and had no emphadnopathy i.e. swelling in nods nor was there dehydration. That his chest was also examined and was found clear and his abdomen had no abnormality. That they however tried to draw a picture and mark areas where he was feeling pain. That the Clinician concluded that there was inflammation of the kidneys and he was given some medication of vitamin B complex and diclofenac gel.

She however concluded that it was very difficult to relate the injuries to what happened eight months ago. That the medical form was signed but the owner of the signature was no longer an employee at the hospital. The medical report was tendered in as an exhibit and marked *Exh Cl.*

On analysing the evidence ofthis expert witness and a proper look at the medical report, this tribunal will not rely on this report since the complainant sought the treatment after 8 months. The expert witness clearly states that 'it is very difficult to relate the injuries to what happened eight months ago.'

The tribunal notes that in a period of eight months, a lot can happen and so the complainant could have suffered inflammation of the kidney through other means. This medical report and CW3's testimony is therefore expunged from the record of proceedings to be relied on while deciding this matter.

The Complainant's evidence is further corroborated by another expert witness a one **Bwambale Enock (CW4).** He states that he is a Nurse by profession at Karugutu Health Centre IV holding a certificate of Enrolment obtained from Kabale Nursing School in 2003. He stated that he worked in Ntoroko Health Centre III from 2005 to 2009 and was transferred to Rwebisengo Health Centre III from 2009 to 2012 and then to Bweramure Health Centre II.

He further stated that he didn't know the complainant and he had been called to give evidence on a medical report he had just received. That the document was about Amos Steady who was assaulted and went to Rwebisengo Health Centre III on 9th August 2010 and that his name appears on top ofthe document. That at the time, he was the in-charge of the health centre though he wasn't the author of the document and didn't recognise the handwriting but it had a stamp of Rwebisingo Health Centre III. The report was tendered in and marked Exh C2

On further analysis of the medical report, it reveals that the complainant as a result of having been beaten using strong sticks, he sustained major bruises on the back, severe chest pains, punctured wound plus muscular-skeletal pain.

## **The Tribunal's decision on the Merits.**

The Tribunal is called upon to determine whether the actions ofthe Respondents as described above constitute a violation of Articles 24 & 44 of the Constitution as alleged by the Complainant. The Tribunal observes that the respondent never called any witnesses to defend the matter nor did he file submissions. Therefore, the Respondent has not made submissions on the Merits despite having been requested to do so on a number of occasions. The Tribunal will therefore examine the Complaint on the basis of the information at its disposal and must give due weight to the Complainant's allegations insofar as these have been adequately substantiated before this Tribunal.

# **(a) Evidence on the Nature of the Harm**

As a major aspect which has been used by some international bodies in distinguishing forms of ill-treatment that are prohibited from those that are not prohibited involves the severity of the resulting harm. In an approach that originated with the European Commission and Court of Human Rights, international bodies have held that the harm suffered must attain a minimum level of severity to constitute torture or inhuman or degrading treatment. Where acts cause little or no physical or mental harm, for example, international bodies have declined to find any form of prohibited treatment. The minimum level of severity is relative, depending on the circumstances ofthe case. Both the African Commission on Human and Peoples' Rights and the Inter-American Commission have adopted the European Court of Human Rights' conclusion that the minimum level of severity "depends on all the circumstances of the case, such

as the duration of the treatment, its physical and/or mental effects and, in some cases, the victim's age, sex and state of health.

A number of tribunals have also used the degree of suffering to distinguish between conduct constituting torture and that constituting cruel, inhuman, or degrading treatment or punishment. To constitute torture, according to these tribunals, conduct must result in severe physical or mental pain or suffering. Indeed, for some, "the seriousness of the pain or suffering sets torture apart from other forms of mistreatment." Severe harm may be either physical or mental, and in many cases, both types of harm are alleged and supported by medical or other corroborating evidence. Typical findings of the harm caused by acts of torture refer to evidence of "a large number of serious lesions and bruises," and include findings that the detainee suffered "a permanent state of physical pain and anxiety," owing to the detainee's uncertainty about his fate and to the blows repeatedly inflicted upon him during the interrogation sessions.

Article 24 of the Constitution provides as follows:

"No person shall be subjected to any form of torture or cruel, inhuman and degrading treatment or punishment."

Torture is a non degrogable right for which no one in whatever conditions/circumstances can justify as provided for under Article 44 of the Constitution of the Republic of Uganda. The complainant and his witnesses were consistent with each other as regards the beating carried out by the respondent's agent. This is an act which was carried out with malice on the part of the respondent's agent.

The Tribunal infers intention on the part of the respondent's agent since according to the complainant and his witnesses, he had been arrested without any force. Why then beat an aging man who was harmless at that time?

In evaluating the extent and degree of harm, this tribunal will consider personal circumstances and the degree of vulnerability of the person who is detained. The

Tribunal considers that this treatment and the surrounding circumstances were of such a serious and cruel nature that it attained the threshold of severity as to amount to torture.

The Tribunal however notes that the complainant's witness i.e. the expert witness (CW3) stated that the complainant had appeared before the medical facility 8 months after the incident and therefore that report couldn't be relied on. The tribunal therefore expunged the testimony of CW3 from the record. However, CW4's evidence as an expert witness is considered since the complainant's bruises were still fresh when he appeared before the facility two weeks after the incident.

# **(c) Evidence on the Purpose and Intent of Torture**

An actor's purpose or intent often will affect whether conduct is deemed torture or cruel, inhuman, or degrading conduct. The Special Rapporteur of the U. N. Commission on Human Rights has indicated that "the requirement of specific purpose seems to be the most decisive criterion which distinguishes torture from cruel or inhuman treatment." In order to constitute torture, an act must have been committed deliberately and for a prohibited purpose.

The requirement of a "prohibited" purpose does not mean that the purpose in question must be illegitimate. At least one of the purposes listed in the Convention Against Torture like obtaining information or a confession can be legitimate ifthe appropriate means are used to achieve the purpose. Nonetheless, the purpose requirement sets torture apart from other forms of ill treatment.

In considering whether the evidence is sufficient to establish a prohibited purpose, international bodies do not require proof that a prohibited purpose is the exclusive or even predominant motivation. "It is sufficient that a prohibited purpose is one of the results sought to be achieved." In addition, although the list of purposes in the Convention Against Torture is "meant to be indicative rather than exhaustive, it is likely that not every purpose is sufficient to constitute torture, but only a purpose which has something in common with the purposes expressly listed. In cases where the evidence fails to show that an act was committed to achieve any particular purpose, the treatment may be deemed cruel or inhuman, but it will not constitute torture.

According to Nowak & Macarthur, the intent or purpose requirement for torture sets torture apart from other prohibited ill-treatment and, for some, should constitute the "dominant element distinguishing torture from cruel or inhuman treatment."

The Tribunal therefore considers that the term 'cruel, inhuman or degrading treatment or punishment' is to be interpreted so as to extend to the widest possible protection against abuse, whether physical or mental. As provided for in Article 24 of the Constitution in order to prevent detainees from being subjected to abuse.

# **(d) Evidence on the responsibility of the individual and public official**

The Convention Against Torture in Article 1 provides that to constitute torture, an act must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." According to the Inter-American Report on Terrorism and Human Rights, in applying these standards, international bodies have held that for acts to constitute torture, the actions must be taken by government officials or with the consent or acquiescence of government officials.

For example, the African Commission on Human and Peoples' Rights relies upon the definition of torture in Article 1 of the Convention Against Torture in determining whether torture has occurred under the African Charter. **In Zimbabwe Human Rights NGO Forum v. Zimbabwe No. 245/02,** the Commission found insufficient evidence that acts taken by members of two nonstate groups, the Zimbabwe ruling party, ZANU, and its military wing, the Zimbabwe Liberation War Veterans Association, had been taken with the consent

or acquiescence of an official of the government of Zimbabwe." Finding no evidence of connivance between the State and the two groups, the Commission noted that in fact the government of Zimbabwe had "investigated allegations brought to its attention" regarding acts that otherwise would be deemed torture.

The Tribunal notes that under the provision of the 1995 Constitution and the Convention Against Torture, a public official need only awareness of the acts constituting torture to "acquiesce" in the torture committed by third parties. The Tribunal therefore emphasizes that the purpose of requiring awareness and not knowledge "is to make it clear that both actual knowledge and 'wilful blindness' fall within the definition of the term 'acquiescence.'" Government officials who inflict, instigate, consent to, or are aware of acts by third parties will meet the requirements of Article 1 of the Convention Against Torture."

Therefore, where abuse does occur, State Parties are also under an obligation to initiate a prompt, impartial and effective investigation in order to bring the perpetrators to justice as well as to afford redress to the victims.

From all indications, the respondent failed to uphold these standards and the Tribunal finds as a consequence that there was a violation of Article 24 of the Constitution.

Based on the complainant's testimony and the consistency of his witnesses' evidence, all the ingredients required to prove whether the Complainant's freedom from torture, or cruel inhuman or degrading treatment or punishment was violated by the respondent's agents/servants are satisfactorily proved in this case.

I therefore find on the balance of probabilities that the respondent's agents violated the complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. This issue is resolved in the affirmative.

**2. Whether the respondent's agents deprived the complainant of his right to freedom from slavery and servitude.**

Article 8 of the International Covenant on Civil and Political Rights (ICCPR) bans slavery, servitude and forced labour, while expressly providing that 'slavery and the slave trade in all their forms shall be prohibited. The African Charter on Human & Peoples Rights under Article 5 stipulates that; eveiy individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. The International Labour Organisation under Article 2 defines forced or compulsory labour to mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

At the National level, the Constitution of the Republic of Uganda 1995 under Article 25 stipulates that no person shall be required to perform forced labour. Slavery is a non degrogable right for which no one in whatever conditions/circumstances can justify as provided for under Article 44 of the Constitution of the Republic of Uganda.

Different courts have decided matters of slave trade and servitude. In the matter of **Prosecutor Vs. Kunarac, Kovac and Vukovic, Judgment of 22 Feb 2001, Case No IT-96-23-T and 23/1,** The court set out the elements of enslavement as follows;

- **i.** the restriction or control of a person ' s autonomy, freedom of choice or freedom of movement; - **ii.** often, the accruing of some gain to the perpetrator. - **iii.** The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; - **iv.** the abuse of power; the victim 1 s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions. - **v.** exploitation; the exaction of forced or compulsory labour or service, often without remuneration. - **vi.** often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking

In **Siliadin Vs. France , Chamber Judgment, European Court of Human Rights, Application No 73316/01, 26 Oct 2005,** The applicant alleged a violation of article 4 of the ECHR because of the forced domestic labour she was required to perform for several years. A neighbor reported what was going on, the couple for whom she worked were prosecuted and convicted of wrongfully obtaining unpaid or insufficiently paid services from a vulnerable or dependent person and for subjecting that person to working or living conditions incompatible with human dignity, both breaches of the French Criminal Code. The accused were acquitted on appeal. The case was subsequently referred to the Versailles Court of Appeal, which found the accused guilty of forcing the applicant to work unpaid.

### **(a) Evidence**

It's the complainant's testimony that while at Budiba Army Detach, he was made to slash grass from midnight while being canned. That he wasn't given where to sleep but instead he spent the whole night slashing. The complainant's evidence is corroborated by that of his witness a one Omuhereza Basiima who went to the army detach in the morning and found the complainant and his son slashing the compound. He stated that while the two were slashing, they were being beaten while compelling them to slash quickly.

## **(b) The Tribunal's decision on the Merits.**

The Tribunal is called upon to determine whether the actions ofthe Respondents as described above constitute a violation of Articles 25 & 44 of the Constitution as alleged by the Complainant. The Tribunal observes that the respondent never called any witnesses nor did he file any submissions. He however cross examined the complainant and his witnesses. Therefore, the Respondent has not made submissions on the Merits despite having been requested to do so on a number of occasions. The Tribunal will therefore examine the Complaint on the basis of the information at its disposal and must give due weight to the Complainant's allegations insofar as these have been adequately substantiated before this Tribunal.

I note that both parties were given adequate time to prepare and present their evidence and in the event that one party did not adduce the necessary evidence; it was presumed that such party waived his right to defend the matter. In **George Asiimwe Vs. Attorney General HCCCS No. 481/1997,** the Plaintiffs case closed and the defendant offered no evidence and Justice Paul Mugamba held

that the Plaintiffs evidence was not controverted and had to be accepted as the truth.

In the instant case, the complainant was arrested by soldiers, taken to the detach from where he was forced to slash the whole night while being beaten. The complainant never at any one time volunteered to slash the compound since he was being coerced and punished. The evidence therefore reveals that the complainant's right to freedom from slavery was violated. The issue is answered in affirmative.

**3. Whether the Respondent (Attorney General) is liable for the violation. Article 119 (4) of the Constitution of Uganda** provides that "the functions of the Attorney General shall include to represent Government in courts or any other legal proceedings to which the Government is a party".

In the case of **Iwina vs. Arua Town Council (1997) HCB 28,** the court that decided the case held as follows: "Once it is proved that the servant was an employee of the master, there is a presumption that he was in the course of employment. The burden then lies on the master to prove the contrary. I shall also apply the principle of law that was upheld in the case of **Muwonge vs. Attorney General (1967) (EA) 17,** in which the presidingjudge the Hon. Justice Newbold P. held that: "The law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are for which the master is to be held liable." This is why the Attorney General was summoned to answer the allegations against the officers of Budiba Army Barracks where the complainant was detained and inhumanly treated and so were carrying out their official duties. In the instant matter therefore, I find and hold that the Attorney General is vicariously liable for the aforementioned violation of the Complainant's rights under consideration.

## **4. Whether the complainant is entitled to compensation:**

Having held that the respondent's servants/agents violated the complainant's right to protection from cruel, inhuman and degrading treatment or punishment, it follows that he is entitled to compensation by the respondent.

Under Article 50 (1) of the constitution of the republic of Uganda 1995,

"Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

Further under Article 53(2) of the Constitution:

'The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

fa) payment of compensation; or

(b) any other legal remedy or redress."

The acts of the soldiers were cruel and inhuman in nature intended to inflict pain and suffering on the complainant. The complainant was a harmless civilian who as a responsible parent was talking to his son about being a thief. Did that necessitate his arrest, torture and compulsory labour? To make matters worse, this aging man being put up to slash the compound the whole night? The Tribunal notes that these were acts of sheer sadists carried out with malice and with disrespect of the human race.

To let such perpetrators go free after committing such acts would be a sign of encouraging the state agents to carry out barbaric acts against innocent people. The soldiers who were on patrol that fateful night had a duty of keeping law and order and so why then beat up an innocent civilian they were meant to protect? The act by the respondent's agents was therefore unconstitutional.

## **Decision of the Tribunal on the Merits**

Based on the above, the Tribunal:

- i. Finds that the Respondent has violated Articles 24, 25 and 44 of the 1995 Constitution of the Republic of Uganda; - ii. Requests the Republic of Uganda to: - a) Pay adequate compensation to the complainant named in the present Complaint in accordance with the Constitution for the rights violated; - b) Initiate an effective and impartial investigation into the circumstances of arrest and detention and the subsequent treatment of the Complainant. - c) Train security officers on relevant standards concerning adherence to custodial safeguards and the prohibition of torture and slavery.

#### **ORDER**

- (I) The complaint is allowed. - (II) The respondent is ordered to pay the complainant a sum of **Ug. Shs 10,000,000= (Ten Million Shillings)** as general damages for violation of his right to freedom from cruel or inhuman and degrading treatment. - (Ill) The respondent is ordered to pay the complainant a sum of **Ug. Shs 5,000,000= (Five Million Shillings)** as general damages for violation of his right to freedom from slavery and servitude.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date hereof.

So it is ordered.

**DATED AT FORT PORTAL ON THIS DAY OF.^XiC/AJ^. V 2022**

**SHIFRAH LUKWAGO PRESIDING COMMISSIONER**