Waako and Another v Attorney General (Complaint No.UHRC/ FPT/33/2007) [2016] UGHRC 25 (30 November 2016)

Full Case Text

![](_page_0_Picture_0.jpeg)

#### **THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL**

### **AT FORT PORTAL**

# **COMPLAINT NO. UHRC/ FPT/33/2007**

**WAAKO TADEO Ur:::::::::::::::::::::::::::::::::::::::::::::::::::::** 1st **COMPLAINANT MUTEGEKI GODWIN :::::::::::::::::::::::::::::::::::::::::::::::::::** 2nd **COMPLAINANT**

## **AND**

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

## **BEFORE HONOURABLE (RTD.) JUSTICE GIDEON TINYINONDI**

#### **DECISION**

The Complainants lodged this complaint against the Respondent seeking compensation for the violation of their right to freedom from torture or cruel, inhuman or degrading treatment or punishment. They alleged that on 23rd March, 2007, they were arrested and taken to Kagote Police Post on suspicion that they had stolen money amounting to Ug. Shs 100,000/= from Kasaija's house. That they were ordered to undress and remain in underpants; one of the police officers called Mugisa Pace slapped Waako Tadeo on the ear and ordered them to lie down and then beat both of them on different parts of their bodies using a wire cable for about 3 hours to force them to confess the whereabouts of the money. That they were detained in the unipot but Waako Tadeo was released on police bond at around 6:00pm while Mutegeki Godwin was released the following day.

The Complainants contended that the actions committed against them by the said police officer amounted to violation of their right to protection from torture or cruel, inhuman or degrading treatment or punishment for which they hold the Respondent vicariously liable.

The Respondent through a representative, Ms. Racheal Lubowa denied the Complainants' allegations.

#### **ISSUES**

- (i) Whether the Complainants' right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated. - (ii) Whether the Respondent (Attorney General) is liable for the violations against the complainants' right. - (iii) Whether the complainants are entitled to any remedies.

Before I resolve the above issues, I wish to state that this matter was mostly heard by former Member of the Commission Agaba Maguru (Mr). I will therefore base this decision on his record of proceedings.

Furthermore, I note that the Respondent did not lead any defense but filed submissions in defense of the matter. The Respondent attempted to settle this matter amicably but this never yielded any fruits despite the several adjournments made to enhance settlement. Nonetheless, the Complainant retained the duty to prove his case against the Respondent to the satisfaction of the tribunal on balance of probabilities and in accordance with the provisions of the Evidence Act.

# Section 101 (1) of the Evidence Act Cap 6 provides that;

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that the facts exist"

# And under S.102 of the Evidence Act (supra);

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.

**I) Whether the Complainants' right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.**

The Macmillan School of Dictionary at page 779 defines "torture "as:

"extreme physical pain that someone is forced to suffer as a punishment or as a way of making them give information". It further defines "to torture" as: "to hurt someone deliberately in a very cruel way as a punishment or in order to make them give information"

The Convention Against Torture (CAT) and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 defines "torture" under Article 1 as;

"An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession punishing him for an act he or a third person has committed or suspected of having committed or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity"

The words "cruel, inhuman and degrading treatment or punishment' are added to extend to the widest possible protection against abuse whether physical or mental.

Article 24 of the Constitution of Uganda prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. It was emphasized in **ATTORNEY GENERAL , VS SALVATORI ABUKI Constitutional Appeal No. 1/1998** that the freedoms enshrined under Article 44 (a) of the Constitution are non derogable and include freedom from torture or cruel, inhuman or degrading treatment or punishment.

Torture is further out lawed by several international human rights instruments to which Uganda is signatory. (See: Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR), and Article 7 of the International Covenant on Civil and Political Rights (ICCPR).

The actions committed against the Complainants would constitute "torture" if the same were proved.

The 1st Complainant **Waako Tadeo Cl** testified that on 23rd March, 2007, he was plastering Mbalirora Clovis' house with the help of the 2nd Complainant Mutegeki Godwin. That he sent Mutegeki to go buy him cigarettes but delayed to bring them for about 2% hours. That he decided to go and look for Mutegeki only to find that he had been locked in Kasaija's house. That many people had gathered and were searching him, but they did not find anything. That he took Mutegeki back to the site, but after about 5 minutes, Kyaligonza Dan and Abigaba came with two policemen and arrested them. That they were taken to Kagote Police Post where one of the police officers called Mugisa Pace ordered them to remove their clothes and remain in their underpants. He further stated that Mugisa Pace slapped him on the ear and ordered him to lie down. That he caned him on the buttocks and back using a wire cable for about 3 hours. That Mutegeki Godwin was equally beaten by the same police officer, Mugisa Pace. That they were after detained but after 2 hours, his wife stood surety for him and he was released on police bond.

Upon cross examination, Waako Tadeo stated that he got treatment after his release and that he was still not feeling well. He stated that he needed to do an x-ray but could not, due to lack of money. He sought compensation of 5,000,000/=.

A certified copy of a police bond dated 23rd March, 2007 from Kagote Police Post was admitted and marked as Exhibit Cl, as proof of the arrest and detention of Wako Tadeo.

The 2nd Complainant **Mutegeki Godwin C2,** testified that on 23rd March, 2007 while working with Waako Tadeo, he was sent by Waako to buy cigarettes. That upon reaching at the Trading Center, he felt thirsty and went to Mr. Kasaija's home to ask for water. That he found the son of Kasaija, one Joseph, who told him to get the water inside their house. That upon entering the house, the door was closed and Joseph started making an alarm that he had caught a thief in their house. That the door was opened and they searched in his pockets but found nothing. That Waako Tadeo came for him and took him back to work, but he was later arrested by the LCI Chairperson who took him to Kasaija's house. He further stated that police officers came and took him to the Subcounty at West Division where he was ordered to remove clothes. That a one Mugisa Pace, a police officer beat him with a wire cable while demanding for Ug. Shs 100,000/= that he alleged that Mutegeki Godwin had stolen. That he decided to tell them that it was Waako Tadeo with the money and they stopped beating him. That they also arrested Waako Tadeo and brought him. He further stated that both of them were ordered to lie down and were kicked. That he was later taken out, handcuffed and tied on a banana stem from where he was beaten again. That both of them were detained in a unipot, but at about 6:00pm, Waako Tadeo was released on police bond. That he (Mutegeki) stayed in the cells and was released the next day at about 10:00am.

During cross examination, he stated that he sustained injuries on the knees and back, and that sometimes when sleeping, one eye remains open. That the said injuries however do not interfere with his daily work.

A certified copy of the police bond dated 24th March, 2007 was admitted and marked Exhibit C 2.

**CW 1 Bonabana Edith** testified that on 23rd March 2007, at 10:00am, she was informed that her son Mutegeki Godwin had been arrested and beaten. That she rushed to the scene and found him with Waako Tadeo at Barirora Clovis' home. That the two were being beaten by Mugisa Pace, a police officer who she knew before. That the police officer was using a bicycle wire lock to beat the duo in turns. That they were taken to the Sub-county and detained because they were suspected to have stolen Ug. Shs. 100,000/ = . That Waako Tadeo was released on that same day while Godwin Mutegeki was also released on police bond the following day. That her son was stained with blood and that she took her to the hospital although the medical treatment notes were stolen when thieves broke into their house.

Upon cross examination, she stated that Mutegeki was only injected and that he had swollen thighs. That she took him to Buhinga Hospital as an outpatient but does not remember the name of the doctor who treated him.

**Mugaabo Robert CW 2** stated that he is an Ear and Throat (ENT) specialist with a specialty in hearing assessment. That he holds a Diploma in Audiology from the University of Nairobi in 2010 and a Diploma in ENT from Makerere University in 2003. That he holds a diploma in Clinical Medicine and Public Health from the School of Clinical Officers, Fort Portal 1993. He stated that he had been practicing medicine for 20 year from different health facilities including Fort Portal Regional Referral hospital and Alpine Medical Center. He testified that he examined the 1st Complainant, Waako Tadeo on 31st March,

2007 and that he authored the medical report before the tribunal. That Waako Tadeo came to him complaining of pain in his ear which had started 6 days ago. That he complained of a backache as well as reduced hearing of the left ear which he said was painful with watery discharge. That upon examination, Waako's condition was generally fair, but as they communicated, he had evident reduced hearing and had a discharge. He stated that he did not recall the treatment he gave him.

The medical report was not admitted as an exhibit because the author had not signed it prior to the hearing of the case. The expert witness was also not cross examined.

Counsel for the Respondent filed written submissions in which she stated that there is no medical evidence on record to prove the allegations of torture of both Complainants.

I do not agree with the Respondent's Counsel's submission on the requirement of medical evidence to prove torture. I will refer to the case of **Fred Kainamura & Ors Vs Attorney General & Ors 1994 KALR 92,** in which Justice Okello J held that, *"it is true there is no medical evidence to support the evidence of assault submitted by Turyasingura. But it was not a requirement of the law that every allegation of assault must be proved by medical evidence. I think cogent evidence can do medical evidence help to prove the gravity ofassault."* I therefore find that medical documentary evidence is not a legal requirement to prove torture and as such, I will rely on the oral evidence on record.

Counsel for the Respondent also submitted that Cl, C2 and CW1 gave contradicting evidence by mentioning different places of the alleged beatings. That whereas Waako Tadeo states that he was beaten at Kagote Police Post, Godwin Mutegeki states that he was beaten from the sub-county and Bonabana Edith stated that the victims were beaten from Balirora Clovis' home. That they placed the perpetrator Mugisa Pace in 3 different places at the same time.

I find that the two Complainants, Cl and C2 refer to the same place of the said beating. Kagote Police Post is located at a Kagote Sub-county headquarters and hence when C2 Godwin Mutegeki refers to Sub-county, he actually means Kagote Police Post at Kagote Sub-county. The two police bond forms admitted as exhibits Cl and C2 indicate that the two complainants were both detained at Kagote Police Post on charges of theft on 23rd March, 2007. This Tribunal also finds that Godwin Mutegeki did not mention the name of the Sub-county but by mentioning a cell, unipot and police officers is sufficient evidence to prove that this was a police post, and not just a sub-county. Therefore I find that there was no contradiction in the evidence of CW1 and CW2 in regard to the place where they were detained or beaten from. I also find that the two Complainants never mentioned the time when each was arrested. Thus one cannot tell whether Mugisa Pace was at 3 different places at the same time.

On the other hand, I concur with Counsel for the Respondent in respect of the evidence by CW1 that the Complainants were beaten from Balirora Clovis' home. However, it is not a contradiction since in the first place the two Complainants never alleged that they were beaten from the said home where they were working. CW1 also never mentioned whether she followed them to Kagote Police Post, and as such, I will not rely on her evidence in this matter.

I find that the testimonies of the Complainants corroborate each other in the as far as the circumstances of their arrest and detention are concerned. The Tribunal is therefore satisfied that the evidence of the Complainants is sufficient to prove that they were subjected to torture or cruel, inhuman or degrading treatment or punishment by the said Mugisa Pace, a Police officer attached to Kagote Police Post. They suffered physical pain and suffering inflicted by the beatings of a police officer while being asked about the money allegedly stolen. The police officer is a public official that was well known and identified by the Complainants.

WHEREFORE, I find on the balance of probabilities that the Respondent's agents violated the Complainants' right to freedom from torture or cruel, inhuman or degrading treatment or punishment and the claim by the Complainants of torture in the this matter is upheld.

## **(i) Whether the Respondent (Attorney General) is liable for the violations against the Complainants' rights**

As resolved in the above issues, there was a violation of the Complainants' right freedom from torture or cruel, inhuman or degrading treatment or punishment contrary to Articles 24 and 44 of the 1995 constitution of Uganda.

Article 119(4) (c) of the Constitution provides that the role of the Attorney General is to represent Government in any civil proceedings to which Government is party. **Section 3** of the Government Proceedings Act Cap 77 provides that the Government is liable for the torts committed by its servants or agents. **Section 10** of the same act provides that all civil actions by and against the Government should be instituted by or against the Attorney General, hence the principle of vicarious liability.

In the case of **Muwonge Vs Attorney General [1967] 1 EA 17(CAK),** Newbold P stated 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 actsfor which the master is to be held liable.*

Therefore, in vicarious liability, it is immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable if such acts are done in the course of their employment.

Similarly in the case of **Jones Vs Tower Boots Co. Ltd 1997 ALLER 40 B** the court held that an act is within the course of employment if it is either

(1) a wrongful act authorized by the employer, or

(2) a wrongful and unauthorized mode of doing some act authorized by the employer

In the instant case the police officer who was properly identified by both Complainants was on duty in the course of his employment at Kagote Police Post when he beat up the complainants to obtain information or a confession on the whereabouts of the stolen cash. It is therefore proper for his master, the Government as represented by the Attorney General, to be the Respondent in this matter. Therefore the Attorney General in this matter is vicariously liable for the violation of the Complainants' right of to freedom from torture or cruel, inhuman or degrading treatment or punishment by the police officer, Mugisa Pace who individually and severally was at the time serving as an employer of the state.

## **(ii) Whether the complainants are entitled to any remedies:**

## Article 53(2) of the Constitution provides that:

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

(a)

(b) payment of compensation; or

In the matter of **Christopher Ssajabi Nsereko Vs Attorney General UHRC No.112/99** Commissioner F. Mariam Wangadya observed that indeed human rights and freedoms would serve no purpose if their violations did not attract redress to the victims.

Having held that the Respondent's servants/agents violated the Complainants' right to protection from torture or cruel, inhuman or degrading treatment or punishment, it follows that they are entitled to a remedy by way of compensation by the respondent.

**Isabirye Kiwule V Attorney General, Complaint UHRC/J/35/2003,** Commissioner J. M Aliro-Omara laid down points to consider when granting compensation for breach of a Complainant's freedom from torture or cruel, inhuman and degrading treatment or punishment:-

- a) The nature of torture and injuries sustained by the Complainant and the impact on his life if any - b) The fact that this right is absolute as stipulated in Article 44 of the Constitution. - c) The innocence of the complainant - d) Where possible, previous awards in cases or complaints of a similar nature.

The actions of the police officer against the two complainants were cruel, oppressive, arrogant, criminal and completely unprovoked and impossible to justify. I will consider the evidence on record to the effect that the complainants suffered severe pain. I will consider the fact that there were no medical documents to inform tribunal as to the extent or gravity of injuries and as to whether there was any permanent disability caused. I will also consider the fact that the right to protection from torture or cruel, inhuman or degrading treatment or punishment is an absolute right under article 44(a) of the Constitution of the Republic of Uganda.

In the instant case, the 1st Complainant Waako Tadeo prayed this tribunal to compensate him with 5,000,000/= (Uganda Shillings five million) while the 2nd Complainant prayed for 20,000,000/= (Uganda Shillings twenty million) but never gave the justification for such amount of money.

After considering the above, I find a sum of UGX 3,000,000/= (Uganda Shillings three million) as adequate compensation in the circumstances for each Complainant.

## **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (the Respondent) is ordered to pay to the 1st Complainant Waako Tadeo, a total sum of U. Shs 3,000,000/ (Uganda Shillings three million) as general damages for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment by State agents. - 3. The Attorney General (the Respondent) is ordered to pay to the 2nd Complainant Mutegeki Godwin, a total sum of U. Shs 3,000,000/ (Uganda Shillings three million) as general damages for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment by State agents. - 4. The said amounts totaling to U. Shs 6,000,000/ (Uganda Shillings six million) will each carry interest at court rate from the date of this decision until payment in full. - 5. Each party shall bear their own costs.

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

**DATED at Fort Portal on this day of...............2016**

**HONOURABLE (RTD.) JUSTICE GIDEON TINYINONDI PRESIDING COMMISSIONER**

$30TH$ day **DELIVERED FORTPORTAL** this $on$ $AT$ Montemative DA-ICATEBALIRUE AMOSTI WA IRUMBA COMMISSIONER of. NOVEMBER, 2016 $$