Tugume Jonathan v Attorney General (Complaint UHRC 95 of 2006) [2016] UGHRC 13 (8 December 2016)

Full Case Text

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### THE REPUBLIC OF UGANDA

## THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

#### **HOLDEN AT KAMPALA**

### **COMPLAINT NO: UHRC/95/2006**

#### TUGUME JONATHAN ::::::::::::::::::::::::::::::::::::

#### **AND**

### ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

# BEFORE PRESIDING COMMISSIONEER 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 29th April 2006, while at his shop in Kirundu Zone, Makindye in Kampala City, he was arrested by police officers from Katwe Police Station on the allegation of murder, and taken to the same station where he was severely tortured and detained for a day. That he was released after the person he was alleged to have killed was produced at the same police station.

The Respondent(R) through his representative, Counsel (RC), Ms. Kampiire Genevieve denied the allegation and opted for putting up a defence.

#### **Issues**

The issues to be determined by this 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 is liable for the alleged violation. - 3. Whether C's is entitled to any remedy.

#### **Tribunal hearing process**

Hearing of this matter started on 10th December, 2010. C and his first witness, Zirimenya Ausi (CW1) were present but R was not represented and the matter was therefore heard ex-parte. C and CW1 testified and the matter was thereafter adjourned sine die.

The second hearing took place on 7th June, 2011. C was absent and R was also not represented. Although CW1 attended, the matter could not proceed and was therefore adjourned to enable the parties attend the next hearing.

The third hearing took place on 7th December 2011 with C and CW1 present. The matter came up for cross-examination of C and CW1 and the medical doctor to testify. However, since R was not represented and the medical doctor summoned was also not able to attend as he was indisposed, the matter was adjourned sine die.

The fourth hearing was held on 14th February 2013. C was present but R was not represented and the Tribunal was informed that RC with personal conduct of the matter had resigned and the complaint file was still pending re-allocation. Therefore, the Tribunal adjourned the hearing since C could not be cross-examined.

The fifth hearing was held on 20th June 2013. C and his expert witness were present but R was again not represented. C's expert witness (CW2) testified, the medical report from ACTV which he interpreted was tendered in as CX1 and the matter adjourned sine die.

$\mathbf{2}$

The sixth hearing took place on 18th September, 2013. C, CW1 and CW2 were present but R was still not represented. Counsel for the Commission (CC) prayed for closure of C's case since R had not appeared in all the previous hearing sessions. The prayer was granted and the matter adjourned sine die.

On 18th November, 2013 when the seventh hearing took place, C was present but R was still not represented. RC, Kampiire Genevieve had however, informed CC that she had a matter to handle in the High Court and also prayed for an adjournment promising to cross-examine C and his witnesses at the next hearing. Accordingly, the matter was again adjourned sine die.

The eighth hearing was held on 19th March, 2014. C and CW2 attended and R was represented by RC Kampiire Genevieve who cross-examined C and CW2, after which the matter was adjourned sine die.

C and CW3 attended the ninth hearing session of 19th May, 2014. CW3 testified but was not cross-examined since R was not represented. The Police Form 3 which he interpreted was tended in as CX3.

C, CW1 and RC Kosia Kasibayo who was holding brief for Counsel Kampiire Genevieve, attended the tenth hearing session which took place on 11th August, 2014. The latter prayed for an adjournment to enable R's counsel with personal conduct of the matter to cross-examine CW1 at the next hearing. The matter was accordingly adjourned sine die.

The eleventh hearing took place on 9th September, 2014 with C, CW1, CW3 and RC all present. However, RC Ainaitwe Goretti was only holding brief for RC Kampiire Genevieve. CW2 and CW3 were cross-examined and C's case was closed. RC prayed for an adjournment to enable them identify and call their witnesses and the matter was accordingly adjourned sine die.

The twelfth hearing took place on $9th$ March, 2015. C was present but R was again not represented and the matter was adjourned for the last time for defence.

The thirteenth and last hearing was held on $23rd$ September, 2016. C was present and R was represented but RC conceded failure to call any defence witnesses. The Tribunal rejected her prayer for another adjournment and the matter was therefore adjourned for written submissions within one month, followed by the Tribunal's decision.

$\overline{3}$

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.

#### $$ Whether C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.

C, Tugume Jonathan testified that on Saturday, 29th April, 2006, at about 5.15 p.m. two salon cars grey and white in colour came and parked at the front of his shop. That two men wearing ordinary clothes came out of the cars and stood at the front of his shop and the others who were from the Local Defence Unit (LDU) remained standing outside the two cars. C added that he knew one of these LDU operatives and their Commander who were also among those standing near the two cars. He stated further that four of these men had small guns and the others had big guns. That the two men who stood near his shop asked him to get out of his shop and when he refused to do so and asked them why they needed him, they accused him of having killed Nsubuga Abdu who was his former worker. That the two men wearing civilian clothes then grabbed him by force, one of them slapped him while the other hit him with a baton on his back before they dragged him towards the LDU operatives who handcuffed him and also tied his legs with chains.

That he was put in the white car which was driven to Katwe Police Station, where he was taken to room 7 and interrogated about the alleged murder of Nsubuga Abdu. That he denied the allegation and told the officers that he had just helped him to get treatment. That he was then taken to the counter where he met a policeman called Okwii wearing a police khaki uniform. That Okwii hit him with a gun butt on his mouth and because of this one of his middle upper tooth broke and fell down. That he started bleeding and the other teeth became loose and later on a second tooth also fell out of the mouth. That his arms were handcuffed and his legs tired with chains while Okwii continued beating him. He also stated that he came to know Okwii's name when his colleague who was a lady called him by this name as she asked him why he was beating C.

C added that he was thereafter detained in a cell and the handcuffs and the chains on his legs were removed at around 7.00 p.m. That the following day at around 9.00 a.m., he was removed from the cell and taken to room 7 again, where he found Abdu Nsubuga, the man he was alleged to have killed and who was recording a statement. That C was also told to record a statement, which he did, and was then asked to pay Shs. $300,000$ = which he did not have.

That he was released after the intervention of his customer, one Robert Matovu but was not given any police bond document. That he went to a hospital where he was given pain killers and then went back to Katwe Police Station on Monday 1st May 2006 and this time he was given Police Form 3 which he took to the Police Surgeon in Kabalagala for examination. That after lodging a complaint at UHRC, he was referred to ACTV for further examination, where he was also given a letter referring him further to Kadic Clinic in Bukoto for more specialized examination.

Tribunal admitted into C's evidence a letter from the Criminal Investigation Department of Katwe Police Station, dated 26th October 2006 and signed by D/SP Otim Chris Eric, the Divisional Police Commander – Katwe. The letter acknowledged that C was indeed arrested and detained on 29th April, 2006 for interrogation on the allegation of murder of Abdu and released on 30th April 2006 as there was no case against him. However, the letter added that the allegation that he was tortured was baseless.

During cross-examination, C reiterated that he had seen a police surgeon two months after he was beaten, and also explained that the report dated 1st June, 2006 which indicated that the injuries he had were about 2 to 3 days old, was written by the nurse who attended to him when he went to see a doctor and did not find him there. He testified further that the nurse gave her preliminary report to the doctor two months later, and the doctor wrote the final report which C brought to the Commission.

He clarified that the doctor was not lying when he said that C's injuries could have been as a result of a punch and a blunt object since he was kicked by police men. He however denied the allegation that he had been involved in a fight with fellow detainees and that this is what caused the injuries he suffered.

C's evidence was corroborated by CW1, Zirimenya Ausi who testified that on one Saturday in April 2006 at about 5.30 p.m., as he had gone to C's shop to buy airtime, about 7 men came in two salon vehicles grey and white in colour and with ordinary registration number plates. That

$\mathsf{S}$

they were police men with some of them wearing police uniform and others wearing ordinary clothes while the two LDU's were wearing a maroon uniform. That they had pistols and 2 guns, and they headed to C's shop, grabbed C and brought him out and handcuffed him while they accused him of having killed one Abdul. That the people who had gathered around started shouting asking the police men why they were taking C away.

CW1 testified further that when C was arrested, he was beaten all over his body and was also slapped on the cheeks and the back before he was forced to enter one of the two cars which the police men were using. That C was driven away and CW1 saw him again later on, on a Monday at his shop but that at this time C was feeling dizzy, and had lost some of his teeth but he could not recall which particular teeth had been lost. That C told him that he had been tortured at Katwe Police Station where he was detained on the allegation of killing Abdu, and that he was released on Sunday after his relatives had intervened.

When CW1 was cross-examined he reiterated that he had known C for over 35 years, adding that he had come to testify before the Tribunal because he had witnessed what had happened to C. He confirmed having seen C being beaten and punched although he did not see his teeth coming out but he knew he had lost at least one of his upper teeth.

CW2 Dr. Kyazze also corroborated C's evidence. He stated that he held a Bachelors of Medicine and Bachelor of Surgery Degree from Makerere University obtained in 1980, and a Diploma in Tropical Medicine and Hygiene of the University of Wit Waters Rand in South Africa obtained in 1995; and that by the time he recorded his testimony he was in private practice with a Children's Clinic in Kampala, adding that he had previously worked with ACTV from 2004 to 2010. He clarified that at ACTV, he worked as a medical Officer and his roles were to examine and treat clients who had been referred to ACTV as cases of torture, and at the end of the examination and treatment, he would make reports of his findings and send them to the referring entities.

He identified the document that he interpreted for the Tribunal as having been written from ACTV, and also as containing particulars and medical findings in respect of Jonathan Tugume. That Tugume went to ACTV on 6th November, 2006 with complaints of a broken tooth and general body pain, and that he alleged to have been arrested on 29th April, 2006 on the allegation

of murder. That he claimed to have been taken to Katwe Police Station where he was beaten from systematically on the buttocks with a baton and his teeth were knocked with a gun butt.

That upon C's examination, his general condition was found to be good. That his skin was intact but his front upper incisor was missing and the latter injury was interpreted as being an acute and chronic physical disability. That all the injuries indicated a mild degree of support of the allegation of torture.

CW2 also corrected the error on the medical form he interpreted, to rectify the impression it gave that C had disability and deformity of the right forearm, and to ensure that it stated correctly that C had a missing front upper incisor. CW2 counter signed on the medical form which was then admitted with RC's consent as CX2.

During cross-examination, CW2 confirmed that he wrote C's medical report from ACTV but he clarified that he was not standing by one of the observations made in the report because he realized that what was specifically recorded on page 8 of the report was not what he had observed. He added that at the time he signed the report, he did not take note of that particular observation stated on page 8, which he considered to have been as a result of a typing error.

CW2 also differentiated a fresh injury from an old one, stating that a fresh injury would have a wound while usually an old one would have a scar. He pointed out that he could not estimate when C had lost his tooth, and also noted that not every loss of teeth is caused by one being hit with gun butts. He explained the meaning of his conclusion which stated that 'there was a mild degree of support' to mean that C's loss of his tooth must have been caused by some force used on him, which could have forced the tooth to come out of his mouth, although he personally could not categorically relate it to a gun butt.

When CW2 was re-examined, he pointed out that his medical reports were usually typed by somebody else and not by himself.

CW3, Dr Kakembo said that he was a medical officer qualified with a medical degree from Makerere University in Kampala obtained in 1974, and also holding a Diploma in Public Health from the same University obtained in 1977. He added that he was a retired Assistant Superintendent of Police and at the time he testified he was working in a clinic in Muyenga. That he had been working as a police surgeon since he joined the Police Force in 1975 and that his work involved examining patients sent to him from various police stations within Kampala accompanied with Police Form (PF) 3, and making the respective reports.

He testified that the PF 3 in the names of Tugume Jonathan that he interpreted for the Tribunal had been authored by Dr. Karegeya whom he had known very well for 5 years since he had recruited him into the Police Service in 2000 and also worked with him for 5 years under the Directorate of Police Medical Services in Nsambya. He clarified that he knew his handwriting, stamp and signature and therefore, he confirmed that Dr. Karegeya was the author of the document he interpreted.

He testified further that on $1^{st}$ June, 2006 when C was examined, he was found with a bruise on his upper limb which was about 5x3 cm, a fresh socket of the right upper first incisor tooth which meant that the tooth was not there but instead there was a wound. That there was also a loose left upper incisor tooth. He added that although these injuries were classified as harm meaning that they were simple, he himself would have classified them as grievous harm since a lost tooth is not replaceable and such an injury is usually a permanent loss of a vital part of one's body.

He added further that the injury suffered by C leading to loss of his tooth had been occasioned by a blunt object in form of a punch that had been inflicted onto C three days prior to his meeting with Dr. Karegeya. That he could not quantify the percentage of damage caused because it would require him time to consult some medical literature but nevertheless, he explained that a tooth is very important for biting and chewing, adding that C had lost two of his teeth as the loose one also eventually came out and he thought that this also was as a result of the same incident.

He further noted that C's loss of his two teeth affected his biting ability and also his self esteem among the general public since his image and appearance could no longer be the same as before.

The Police Form 3 that CW3 interpreted for the Tribunal was admitted with RC's consent into $C$ 's evidence as CX3.

During cross-examination, CW3 reiterated that C was examined on 1st June 2006, and that CW3 did not give him any medication since his duty was to examine, fill in the form and advise the patient to go somewhere else for treatment. He clarified further that at the time of his examination, C had fresh injuries of about 2 to 3 days old and CW3 based this assessment on what C himself had told him, although he could also scientifically determine their duration.

He also clarified that a punch or beating with a stone or a piece of wood could cause a tooth to get out. He firmly stated that such loss of one's tooth could not be caused by tooth decay because a tooth decay would be septic. He reiterated that incisors are for biting, and also clarified that C was not examined again and so, CW3 was not in position to testify against anything else apart from the document he interpreted.

The rebuttal to C's evidence by R's side was only done by way of cross-examination of C and his witnesses by RC. However, the cross-examination that RC did during the process of hearing this complaint did not result into any significant challenge to the evidence adduced by C and his three witnesses specifically to prove the allegation of torture or cruel, inhuman or degrading treatment or punishment.

RC focused on three issues, that is: the dates when C visited the Police Surgeon; the duration of the injury on C; and the cause of C's loss of his tooth. C and CW3 both confirmed that C was examined by CW3 on 1st June 2006, and that C's injury was about 2 to 3 days old. C also confirmed to RC that the Doctor was right when he noted that the injury he had could have been caused by a punch and use of a blunt object, since he was actually kicked by police men. RC's questions also helped C to affirm what actually happened to him as he denied that his fellow inmates had beaten him in a fight. Generally, RC's questions revealed the fact that RC also agreed that C had been beaten but only wanted to know who had beaten him. Cross-examination also provided CW3 the opportunity to clarify scientifically that C's tooth could not have been lost due to tooth decay.

In addition, RC's cross-examination of CW2 was majorly aimed at discrediting the ACTV report, since CW2 had noted that what he had observed on C was not what was written on page 8 of the report he interpreted. However, CW2 was clear and convincing when he voluntarily admitted this error and also clarified that he could not stand by this particular observation in the report because of the aforementioned reason. He also enhanced his clarification by providing vital differentiation between a fresh injury from an old one, and therefore confirming his scientific conclusion that there must have been some force used that could have caused C's tooth to come out.

Since RC failed on two occasions to call defence witnesses and as she also 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.

The violation of the aforementioned right that C claimed to have suffered and which is the issue under instant consideration, is protected by Uganda's Constitution and other relevant Ugandan laws as well as some of the International and Regional (African) legal human rights instruments that Uganda has signed 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 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 torture or cruel, inhuman or degrading treatment or punishment already so prohibited by human rights law was indeed involved in this case.

$10$

The definition of torture 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, since this Act domesticates the afore-cited CAT, the definition provided under Article 1 of the CAT is sufficient in this case. The CAT provides that torture is:

> an act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession or 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 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.

As I seek to determine the issue of whether or not such a violation took place, I must therefore take into account the afore-cited definition of torture as provided under Article 1 of the CAT. Accordingly, I have found 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 and contours that are identifiable in the CAT definition and the current international concept of torture are proved by the evidence adduced by C. The four ingredients and contours are:

- Whether the alleged actions of assault by State agents caused $C$ severe pain or $\bullet$ suffering, whether physical or mental. - Whether such pain and suffering that the acts caused was intentionally inflicted C.

- 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.

As already noted, the Police Officers from Katwe Police Station who arrested C assaulted him by beating him while his arms were handcuffed and his legs tied with chains, and they also hit him with a gun butt on the mouth leading to the devastating loss of one of his teeth and another one also becoming loose and later on also falling out of his mouth.

It is therefore clear that the injuries that C suffered did seriously affect him both physically and mentally. The severity of the effect of the injuries was scientifically confirmed by the medical experts with CW3 also concluding that this particular injury caused grievous harm to C who could not bite well and his self esteem was lowered because of this loss of his teeth. This scientific assessment therefore confirms that the afore-mentioned first ingredient of torture was involved in the injuries that C suffered and their effects on him.

When C was being arrested, he was told that he had murdered one Abdu Nsubuga and while he was being interrogated, he was required to admit the alleged murder and to narrate how he had killed Abdu. This clearly indicates that the assault on C was not only intentional but also, purposeful. The police officers who interrogated him wanted to get a confession from him while those who arrested him also at the time of arrest they treated him inhumanly and with cruelty to punish him since he had refused to get out of his shop when they called him out, and also because he dared to ask them why they needed him.

Therefore, the afore-mentioned second and third ingredients of torture were also fully involved in the actions of C's assailants.

Since the Police Officers and LDU operatives from Katwe Police Station arrested C while they were carrying out their official duties and they also detained and assaulted him from the same station where they took him for official detention and interrogation, then there is no doubt that the fourth ingredient of the definition of torture was also involved in this matter.

I therefore find and hold that C's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was both individually and severally violated by the aforementioned State agents who also contravened Articles 24, 44 and 221 of the Constitution of Uganda and the relevant provisions of the aforementioned International and Regional human rights legal instruments ratified and signed by Uganda thus, binding itself and its agents to observe those provisions contained therein.

Accordingly, C's claim regarding the first issue under instant consideration is resolved in the affirmative and therefore, in C's favour.

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

I have already accepted the confirmed fact that the aforementioned police officers and LDU operatives were actively in employment by, and also carrying out official duties in service of, the State, their master, at the time they violated C's right.

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".

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.

Accordingly, since the first issue has been resolved in favour of C, I am therefore holding R vicariously liable for the acts of the aforementioned Police Officers and LDU operatives from Katwe Police Station who violated C's right. Therefore, C's claim in this respect also succeeds.

## $$ **Whether C is entitled to any remedy**

Article 53(2) (b) of the 1995 Constitution of Uganda empowers the Commission, once it gets 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 State agent, he is therefore entitled to receive compensation from R by way of damages.

However, I shall 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 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; George Paul Emenyu & Another -v- Attorney General 109/1994 V KALR].

In addition, the following important elements are also taken into consideration:

- The specific nature of the violation already proved to have been committed by State $a)$ agents. - $\mathbf{b}$ ) The constitutional status of the specific right that has been violated, which is absolute and non-derogable. - The fact that C was charged in court and found with no case to answer. $c)$ - $d$ Previous awards made in cases or complaints similar to the instant one.

- $e)$ \* The value of the money to be awarded for damages, taking into account its purchasing power under the current national economic conditions; as well as the time lag from April 2006 when the violation was committed up to the time of making this decision; and - The capacity of R to pay the awarded damages, taking into account the current national $\mathbf{f}$ economic conditions and overall government revenue status.

In Kisembo Milton Vs Attorney General, UHRC/FPT/005/2004, the complainant satisfied the Tribunal that he was indeed beaten all over the body, pushed against the wall and punched heavily by policemen, and the Presiding Commissioner C. K. Karusoke therefore awarded him UGX 3,000,000/= (Three Million Uganda Shillings) as general damages in compensation for the violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment.

In the case of Olupot Stephen vs Attorney General, UHRC/591/2003, the Complainant Stephen Olypot proved to the satisfaction of the Tribunal that was presided over by former Commissioner Veronica Eragu Bitchetero who also decided the complaint in August 2007, that Stephen Olypot 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.

Basing on the gravity of the torture that the Complainant in this cited case suffered as summarized above, the Presiding Commissioner awarded him 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.

In Adukule Abraham Vs Attorney General, Complaint No. UHRC/205/2005 delivered in 2011, The Complainant was severely beaten on his head by the police man and three VCCU operatives who arrested him. He sustained severe injuries on his head, severe pain in his chest

which rendered his breathing difficult for some time, and also lost one tooth from his mouth and others became loose. The ACTV medical report indicated that two years after the time of the alleged assault, the Complainant still had clear scars on his body and evidence of the missing tooth, and concluded that the scars and missing tooth were consistent with the torture methods that had allegedly been used by the assailants. The presiding Commissioner who is also deciding the instant complaint, awarded the Complainant Shs. 5,000,000/ $=$ as general damages for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment.

Adukule's injuries in the latter cited complaint to a certain extent are similar to the ones that were sustained by C, Tugume Jonathan in the complaint under instant resolution. Adukule Abraham lost a premolar tooth and the effect on the other two which became loose, left him with a permanently maimed jaw in his mouth. This to a large extent is similar to C's loss of an incisor in his upper jaw. However, I believe that loss of a front tooth is worse than the loss of a premolar which is in the side of the mouth. This is the reason why CW3 stated convincingly that the effect of the loss of the incisor tooth on C was low self esteem among the general public, on top of the loss of power for biting.

However, C's injuries were not as fatal as those that were sustained by Adukule Abraham in the latter cited precedent case, as Adukule in addition to loss of a tooth, he sustained severe injuries on his head and severe pain in his chest which rendered his breathing difficult for some time.

Therefore, although the infringement on C's right under consideration now violated a nonderogable right guaranteed under Article 44 of the Constitution, and in spite of the fact that C was not even taken to court since the person he was accused of having murdered was alive, I shall still consider a slightly lower quantum for damages in his favour in respect of the violation under consideration now than what was awarded to Adukule for a similar violation in the cited case. Nevertheless, I must at the same time take cognizance of the principle regarding the value of the amount of the money awarded and its current purchasing power, as compared to the value and purchasing power the same amount might have had in case the matter had been decided soon after the incident in 2006 when the violation was committed, as well as the time this complaint has taken before being concluded. Still, I am also constrained to take into account government's limited capacity at present to pay tribunal and court awards.

I am therefore awarding to C Ug. Shs.4,500,000/ $=$ (Uganda Shillings four million five hundred thousand only) as general damages for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment which was supposed not to be derogated from.

I am therefore ordering as follows:

## **ORDERS**

$\mathcal{L}^{\otimes n}$

1. The complaint is wholly allowed.

- $2.$ R (Attorney General) is ordered to pay to C, Tugume Jonathan a total of Ug. Shs. $4,500,000=$ (Uganda Shillings four million, five hundred thousand only) for the violation of his right of freedom from torture or cruel, Inhuman or degrading treatment or punishment. - $3.$ Interest at a rate of 10% per annum to be paid on the total sum of Ug. Shs. $4,500,000=$ (Uganda Shillings four million, five hundred thousand 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 KAMPALA ON THIS. 2..... TH DAY OF DECEMBER, $....2016.$

$\omega$ $\alpha$ **SIGNED BX**

DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER