Wabuyere Willy v Attorney General (Complaint UHRC 120 of 2006) [2014] UGHRC 1 (22 August 2014)


# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL

### HOLDEN AT CENTRAL

### **COMPLAINT NO. 120/2006**

### WABUYERE WILLY ...................................

## **AND**

### ATTORNEY GENERAL ....................................

# **DECISION**

The complainant Wabuyere Willy lodged this complaint before the Commission. He alleges that on June 28<sup>th</sup>, 2006 at about 2.00pm while at his home in Kibuli, the Rapid Response Unit Operatives (VCCU) arrested him on allegations of abduction; he alleges that he was first taken to Kabalagala Police post where he spent a night and was later transferred to VCCU in Kireka. He farther alleges that, while at Kireka, the operatives tortured him, he was beaten with punching machine and a big stick all over his body, and that his shirt was tied on his mouth so that he could not make any alarm. He alleges that due to

torture meted on him, he sustained grievous harm on his knees, ankles, legs, head and arms. He farther alleges that, he spent one week in VCCU and that on July 5, 2006 he was taken to Central Police Station where he was released on bond.

The respondent was not represented throughout the hearing of the case so they could neither deny the allegations nor defend themselves.

Issues.

- 1. Whether the complainant's right to protection against torture or cruel, inhuman and degrading treatment or punishment was violated by the respondent's agents. - 2. Whether the complainant was deprived of his right to personal liberty contrary to article 23(4) of the Constitution. - 3. Whether the complainant has any remedy available in the circumstances.

I want to note here that it was the duty of the complainant to prove his case against the respondent on a balance of probabilities.

Section 101 (1) of the Evidence Act Cap 6 provides:

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

And under Section 102 of the Evidence Act (Supra):

"The burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all were given on either side."

I turn to the issues for determination by the tribunal;

1. Whether the complainant's right to protection against torture or cruel, inhuman and degrading treatment or punishment was violated by the respondent's agents.

The term "torture" is defined by the Convention Against Torture and other Cruel Inhuman and Degrading Treatment or Punishment, 1984 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 her or a third person information or confession punishing him for an act he or she or 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.

Torture is outlawed by Article 24 and 44(a) of the Constitution, and by several International Human rights instruments to which Uganda is signatory, and other domestic laws.

# Evidence.

In the instant case, the acts complained by Wabuyere Willy constitute "torture" if the same are proved.

Wabuyere Willy testified that it was on 28<sup>th</sup> June 2006 at about 1.00pm while he was sleeping in his house when some people knocked

on his door and when he did not open, they broke it open using the gun barrel and entered inside, they were 6 in number 3 wearing maroon uniforms while the other 3 were in civilian clothing. One of the operatives was called Okello, he was in uniform. They arrested him and took him to where they had packed the saloon white car they came with and push him to lie in between the front seats and behind seats while they sat stepping on him. They drove him to Kabalagala police post and then later to CPS.

At this point I start to doubt the testimony of Wabuyere Willy and believe that it is ridiculed with falsehood, for how possible is it for 6 people to sit in a saloon car, get a suspect and have him lie in the same car as they step on him?

Wabuyere further testified that while at CPS, he was interrogated on the offense he was alleged to have committed that is abduction of a one Grace, whom he denied knowledge of, it's at this point when the police Officer called Shakira Moses started beating him with a punching Machine on his head, legs especially knees, elbows.

"Officer told me to stretch my arms against the wall and he continued beating me with the punching machine for two hours," the complainant stated

Again the narration is too ridiculed to be believed. Wabuyere was given the opportunity to prove his case on a balance of probabilities, through his own evidence and that of his eye witnesses, however to make his matter worse, Wabuyere did not sermon witnesses who saw what exactly happened to him for example the principle of the school he taught who visited him at CPS and could have witnessed this and also his brother whom he claims was told by police to get ready to care for wife as widow since he was going to be killed or even his own wife who could have visited him in custody, but instead he decided to summon witnesses who did not see or follow the account of events except the expert witness.

Wabuyere claims he was then taken to Kololo VCCU from CPS and to VCCU Kireka where he was released after spending about 5 days where upon he open the case with UHRC.

When I analyzed his statement recorded with the commission in 2006. there is a big contradiction in this statement and his evidence in chief i.e on the date and time of his arrest.

While he did not state that he was beaten at home during his arrest, his witness stated otherwise, Mubeke Ibrahim a neighbor to Wabuyere testified that on 28<sup>th</sup>/June 2006, at 1.00 am, people came banging Wabuyere,s door, the witness and his wife feared to come out of their house but later was told by Wabuyere's wife that Wabuyere was taken to Kabalagala police while being beaten.

While the second complainant's witness, Opande Francis testified that on that fateful day, after hearing the noise, he came out of his house only to find Wabuyere Willy seriously being beaten by the security personnelat home while being arrested using sticks and slaps all over his body. He farther stated that the complainant was taken to Kabalagala police post and on the following day he went with the complainant's wife to see him but did not get him there. On the other hand the first witness stated that the following day he went with the complainant's wife to Kabalagala police post and found the complainant badly beaten, but nowhere in their statements did they mention who else each of them went with, while Opande did not find the complainant at Kabalagala, Muberek found him, whose statement then was I to believe in this torture allegation, that of the complainant or his witness? This was a serious contradiction between these witnesses and leaves a lot to be desired, their statements were baseless and full of falsehood with a view to extort money from government.

Indeed if wabuyere was badly beaten/tortured as claimed, one wonders why it took him five days to seek medical treatment, the question therefore is, was he seriously beaten?

According to the evidence of the expert witness Dr. Paul Muwa who works for ACTV and who personally attended to the complainant, he stated that Wabuyere came to their centre on 10<sup>th</sup> July 2006 with complaint of generalized body pain. He saw him two weeks after the incident had happened.

According to the complainantexbit of police release bond tendered in the tribunal, it states that the suspect Wabuyere Willy was released on 5<sup>th</sup> July 2006, so one would wonder why Wabuyere had to wait five more days before he could seek medical treatment, so was he really tortured as claimed?

In Khatijabai Jiwa Hasham v Zenab C/O Chandu Nansi 1975 E. A. 38 EACA, Connel J quoting FIELD'S I ntroduction to the Law of Evidence at page 37 held.

"Falsehood should be considered in weighing evidence; it may be so glaring as to utterly destroy confidence in the witness altogether. But when there is reason to believe that the main part of the deposition is true, it should not be arbitrary rejected because of a want of veracity on perhaps some very minor points"

It is the considered view of the tribunal that the falsehoods in the complainant's testimony are so glaring and deliberate and that the

contradiction in his testimony and that of his witnesses are major and on material particulars, its therefore not safe to uphold his claim of torture

After analyzing all this statements, I find on a balance of probabilities that Wabuyere Willy failed to prove his case of alleged torture basing on its ingredients of torture being intentional to procure a confession or punishing him so as to procure a confession. No one saw Wabuyere being tortured with a punching machine as claimed. Therefore the respondent did not violate the complainant's right to protection from torture, cruel, inhuman and degrading treatment.

## 2. Whether the complainant was deprived of his right to personal liberty contrary to article 23(4) of the Constitution.

The right to personal liberty is protected by the Constitution of the of Uganda and various International Human Rights Republic Instruments and the Law of Tort under the Tort of False Imprisonment.

Richard Clayton and Hugh Tomlinson in their book, the Law of Human Rights, Vol 1, page 455 states that;

"The tort of false imprisonment is committed by someone who intentionally subjects another to total restraint of movement either by actively causing his confinement or preventing him 9 | Page

from exercising his privilege of leaving the place where he is. Any interference with liberty is unlawful unless the person responsible for the imprisonment can show that it is justified"

Article 23 (1) of the Constitution of the Republic of Uganda provides for circumstances under which rights to personal liberty can be lawfully deprived. Article 23 (1) c, provides that the deprivation should be for purposes of bringing a person before court in execution of a court order or upon reasonable suspicion that, the person has committed or about to commit a criminal offense.

In the instant case Wabuyere testified that he was arrested on $28^{th}$ June 2006 by the security operatives and first taken to Kabalagala police post where he was detained for one day before he was taken Kololo VCCU where he spent one week before he was brought back to CPS where he was released on police bond on 5<sup>th</sup> July 2006 without being produced to court asd required by law.

Evidence of the police release on bond form tendered before the tribunal indicate that the complainant was released on 5<sup>th</sup> July 2006. this corroborates with is evidence in chief on the date of his release.

Considering the evidence adduced before the tribunal, I consider it sufficient to prove that indeed the complainant was denied his liberty

hence the respondent violated his right to personal liberty as is vicariously liable.

## 3. Whether the complainant has any remedy available in the circumstances.

Having held that the respondent's agent violated the complainant right to personal liberty, he is entitled to be compensated.

The complainant was detained for one week before he was eventually released without being produced to court. The law is that once the detention or imprisonment is established, the burden shifts to the defendant to prove that it was reasonably justifiable. However, the instant case was heard ex parte. Therefore there was no explanation from the respondent to justify the detention of the complainant beyond $48$ hours.

It is the practice of this tribunal to award Ug. Shs. 2,000,000/- for every seven days of unlawful detention, but the circumstances in this case call for a lesser a ward. I deem a figure of 1,500,000/- adequate compensation for the complainant for violating his right to personal liberty. I so award.

11 | $P$ a g e

## ORDER.

- 1. The complaint is partially allowed. - 2. The respondent is ordered to pay the complainant a sum of Ugshs, $1,500,000=$ (one million five hundred thousand shillings only) - 3. The said amount of 1,500,000/- will carry interest at court rate with effect from September 2014 until payment in full. - 4. Parties are informed of their right to appeal against this decision to the high Court of Uganda within 30 days from the date hereof.

DATED AT KAMPALA THIS... 22nd<br>DAY OF....................................

Violet Akurut Adome

Presiding Commissioner