Tumuhaise Kyagaba v Attorney General (Complaint No. FPT/62/2011) [2022] UGHRC 14 (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/62/2011**

## **TUMUHAISE FRANCIS KYAGABA::::::::::::::::::::::::::::::::::::::: COMPLAINANT AND ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

This is a complaint brought by Tumuhaise Francis Kyagaba against the Attorney General in which he alleges the violation of his right to Freedom from Torture, Cruel, Inhuman and Degrading Treatment or Punishment. The complainant alleges that on 14th June 2011, he attended a meeting to resolve land conflicts at Baguma John's home which was chaired by the Community Development Officer and a Police Officer known as Barigye attached to Kichwamba Police Post. That after the meeting while he was on his way back home, he was stopped by the police officer and when he stopped, the police officer started beating him with a baton on his knees and ankles while the Community Development Officer watched. He alleges that he was seriously beaten and when he called for help, the police officer instead called for reinforcement and another police officer arrived. That the two police officers beat him until he could not move and was thereafter taken to Kichwamba Police Post where he was detained for one night when he was released and went to Ntare Health Centre for treatment. The respondent through his counsel Mr. Ndibarema Grace denied liability.

#### **Issues:**

The issues for determination before this tribunal are:

- (i) Whether the respondent's servants violated the complainant's right to freedom from torture or cruel, inhuman and degrading treatment. - (ii) Whether the respondent (Attorney General) is liable for the violation - (iii) 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 largely heard by former Hon. Agaba Maguru and partly by Hon. Dr. Patricia Achan Okiria. The decision is therefore based on the record of proceedings prepared by them.

Secondly, the complainant and his witnesses testified and were cross examined by the respondent counsel. However, it's important to note that the respondent never call any witnesses in defence of the matter nor did he file written submissions despite several adjournments to do the same. I however, note that this did not remove the complainant's responsibility to prove his case before the Tribunal.

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 ofany 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 has evolved into treaty obligations through the International Covenant on Civil and Political Rights of 1966. "Article 7 ofthe Civil and Political Covenant re-echoes clearly Article 3 of the Universal Declaration, 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 Covenantstates that while some rights may be the subject ofderogation during a "time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed," the provisions ofArticle 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 oftheir liberty shall be treated with humanity and with respect for the inherent dignity ofthe 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 oftorture in Uganda until 18th September, 2012 upon the commencement ofthe Prevention and Prohibition ofTorture 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 oftorture as provided under Article 1 ofthe 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 oftorture." Article 1 ofthe 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 oftorture."

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 ofthe 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 of the 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 treatment' 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 ofthe act or acts involved;

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

c) The purpose ofthe actor, evidence on the purpose and Intent oftorture.

d) The official status and/or individual responsibility ofthe 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 ofseverity 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 ofUganda.

In **Fred Tumuramye -and- Attorney General UHRC NO. 264 of 1999,** Commissioner Aliro Omara outlined the central contours oftorture 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 14th June 2011, at about 3:00pm, he went for a land conflict meeting involving one of their residents. That at the meeting, he found the Community Development Officer, a police officer and other residents. That after the meeting, he went back home but upon his arrival, the police officer and another man arrested him and started beating him. That he was taken to Kicwamba Police Post from where he was informed that the arrested was due to a question he had asked during the community meeting. That as a result of the beating, he sustained injuries on the ankles and legs which had been beaten using gun butts. He further testified that he was beaten for about an hour and remained in detention for 1 day when he was released and taken to Ntare Health Centre. He stated that he got healed although he sometimes feels pain.

### **(a) 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 ofthe types of actions that constitute torture. Some ofthe 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 when he reached home, he was arrested by a police officer and another man and beaten on the ankles and legs. He also stated that he stayed in detention for one day and was taken to Ntare Health Centre for treatment. He stated that he got healed although he sometimes some feels pain.

During cross examination, the complainant stated that he was arrested at about 4:00pm by two uniformed police officers. That one of the police officers was armed with a baton and he was pierced with the gun butt several times and beaten using a baton. He further confirmed that he was taken to Ntare Health Centre where he was admitted for 2 days.

The complainant's eye witness **(CW2) Byamukama Wilson** testified that on 14lh June 2011, he received a note from the LC1 Chairperson inviting him for a meeting. That at 3pm, he went for the meeting and he together with the complainant asked some questions during the meeting. That after the meeting, the Community Development Officer ordered for the arrest of anyone who had asked questions during the meeting.

#### He added as follows;

"I was arrested, followed by Tumuhaise. We were beaten. The complainant was beaten by the police officer in my presence. He was beaten in areas ofthe legs up to the stomach for about an hour while blaming Tumuhaise for the question he had asked during the meeting. After the beating, we were taken to Kichwamba Police Post and detained for a day but Tumuhaise was bleeding severely. He sustained injuries on his knees and legs and in the morning he was taken to the health centre."

When cross examined by respondent's counsel, CW2 confirmed that the complainant was beaten from his home and he was present while he was being beaten. That CW2 wasn't beaten and were both taken to Kichwamba Police Post using a motorcycle. He also stated that the complainant was beaten using a gun butt and baton. That he was being pierced with the gun butt on both legs and taken to Ntare Health Centre for treatment.

The complainant's testimony was further corroborated by the evidence of**(CW3) Deo Kagoro,** an expert witness, a resident of Kicheche Health Center III in Kitagwenda District. He testified that he was a Public Health Officer at Kicheche Health Centre III since July 2014 holding a diploma in Clinical Medicine from School of Clinical Officers Fort portal in 1994. lie also holds a BSC in Public Health obtained from Mountains ofthe Moon University.

The expert witness interpreted the medical report as follows;

*"This is a medical examination report dated 15th June 2011 addressed to Kamwenge Health Centre in respect ofone Tumuhaise Francis Kyagaba who complained ofunlawful wounding. He was examined by one Kisembo Moses ofNtare Health Centre IV on June 2011. It wasfound that he hadfresh wounds, swelling on the right and left too, the injury was 1 by 1cm and the classification was bodily harm."*

He further testified that on 17th April 2013, staff from Uganda Human Rights Commission came to Ntare Health Centre IV where he was working and was the In Charge then. That the staffwent to follow up on the certification ofthe medical report but the Clinical Officer who had worked on the complainant had since been transferred to another district. That they found him at the station and he certified the medical report since the health worker who had attended to the complainant was well known to him and he could recognise his signature.

The medical report was tendered in as an exhibit and marked *EXHIBIT Cl.* When cross examined by respondent's counsel, the witness stated that he had been a clinical officer since 2000. He stated that fresh wounds could be caused by someone or a person could have fallen accidentally so one couldn't tell the cause ofthe wounds. He confirmed that it's him who certified the medical report but according to the report, the complainant went to the health centre in June 2011 but the date is not clear either on 13th or 18th June 2011.

The complainant's evidence is further corroborated by the testimony of CW4 Mpairwe Mary. It's her testimony that on 14th June 2011, while in her garden cultivating, she saw the complainant go back to his home which was near her garden. That shortly after, she saw a police officer by the name Barigye following the complainant. That the police officer started hitting the complainant using a baton for about 30 minutes. That another police officer called Sam also arrived and started beating Tumuhaise. That when she inquired why they were beating the complainant, that they responded that they were on government duty.

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

The Tribunal is called upon to determine whether the actions of the Respondents as described above constitute a violation ofArticles 24 & 44 ofthe Constitution as alleged by the Complainant. The Tribunal observes that the complainant and his witnesses testified and were cross examined by respondent's counsel but the respondent never called any defence witnesses nor did they file written submissions despite several adjournments to do the same. 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.

## **(b) Evidence on the Nature ofthe Harm**

As a major aspect which has been used by some international bodies in distinguishing forms ofilltreatment that are prohibited from those that are not prohibited involves the severity ofthe resulting harm. In an approach that originated with the European Commission and Court ofHuman 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 ofseverity 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 ofHuman Rights' conclusion that the minimum level ofseverity "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 ofthe pain or suffering sets torture apart from other forms ofmistreatment." Severe harm may be either physical or mental, and in many cases, both types ofharm 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 ofthe Constitution provides as follows:

"No person shall be subjected to any form oftorture 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 was followed from the meeting place to his home, arrested and severely beaten. In evaluating the extent and degree of harm, this tribunal will therefore consider personal circumstances and the degree ofvulnerability ofthe person who is detained. The Tribunal considers that this treatment and the surrounding circumstances were ofsuch a serious and cruel nature that it attained the threshold ofseverity as to amount to torture.

## **(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 ofspecific 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 ofthe purposes listed in the Convention Against Torture like obtaining information or a confession can be legitimate if the appropriate means are used to achieve the purpose. Nonetheless, the purpose requirement sets torture apart from other forms ofill 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 ofthe 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 ofthe 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 ofthe 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 oftwo non-state 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 ofthe 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 ofthe 1995 Constitution and the Convention Against Torture, a public official need only awareness ofthe acts constituting torture to ''acquiesce" in the torture committed by third parties. The Tribunal therefore emphasizes that the purpose ofrequiring 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 ofthe 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 (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 ifwhat 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 Kicwamba Police Post who beat up the complainant during arrest as they 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 ofthe Complainant's right under consideration.

#### **3. 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) ofthe constitution ofthe republic ofUganda 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) ofthe Constitution:

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

(a) payment of compensation; or

(b) any other legal remedy or redress."

The acts of the police officer were cruel and inhuman in nature intended to inflict pain and suffering on the complainant. The complainant was a harmless civilian who had at all times the right to ask questions during the meeting. Why then beat him up during arrest yet they had already handcuffed him? Why then beat him? 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 police have a responsibility of keeping law and order and so why then come and severely beat up the human race it's 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 and 44 ofthe 1995 Constitution ofthe Republic ofUganda; - 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 ofthe Complainant. - c) Train security officers on relevant standards concerning adherence to custodial safeguards and the prohibition oftorture.

#### **ORDER**

(I) The complaint is allowed in part.

- (II) The respondent is ordered to pay the complainant Tumuhaise Francis Kyagaba a sum of**Ug. Shs 10,000,000= (Ten Million Shillings)** as general damages for violation ofhis right to freedom from torture or cruel, inhuman and degrading treatment or punishment. - (Ill) The **Ug. Shs 10,000,000= (Ten Million Shillings)** will carry interest at court rate from the date hereof until payment in full.

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 FORTPORTAL ON THIS .......... DAY OF ?..???. 2022**

**SIGNED BY:**

# **SHIFRAH LUKWAGO PRESIDING COMMISSIONER**