Wodada v Attorney General (Complaint No. SRT/60/2007) [2016] UGHRC 21 (1 December 2016)

Full Case Text

![](_page_0_Picture_0.jpeg)

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

#### **AT SOROTI**

# **COMPLAINT NO. SRT/60/2007**

**WODADA GERALD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT**

#### **VERSUS**

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

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

#### **DECISION**

The Complainant lodged this complaint against the Respondent seeking compensation for alleged violation of his rights to personal liberty and to freedom from torture or cruel, inhuman or degrading treatment or punishment. He alleged that on 2nd February, 2007 at around 4:30 a.m while he was at Bishop Road Mbale, selling newspapers, five men, who included two VCCU agents, one police man in police uniform and two in civilian clothes arrested him. That they took him to Mbale Central Police Station where he was ordered to remove his shirt and trouser. That they beat him using firewood, kicked and slapped him on his ears for about 2 hours, while demanding from him a gun. He was later in the day driven to his home for search for the gun but none was recovered. He was taken back to Mbale CPS, detained for 10 days before being released on police bond. He reported to the Police three times and the bond was cancelled on ground that he had no case to answer.

He further alleged that the actions committed against him by the said police officers amounted to the violation of his rights to personal liberty and to protection from torture or cruel, inhuman or degrading treatment or punishment. Thus holding the Respondent vicariously liable.

The Respondent through a representative, Mr. Lumbe Eric, holding brief for Ms. Juliet Topacho denied the Complainant's allegations.

## **ISSUES**

- (i) Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents/servants - (ii) Whether the Complainant's right to personal liberty was violated by Respondent's agents/servants - (iii) Whether the Respondent is liable for the violations. - (iv) Whether the Complainant is entitled to any remedies.

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

Furthermore, I note from the record that the Respondent did not lead any defense but filed submissions in defense of the matter. 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 Complainant's 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 and other Cruel, Inhuman and Degrading Treatmentor Punishment, 1984(UN CAT) 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"

Article 24 of the Constitution of Uganda prohibits the violation of a person'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 of the Constitution are non-derogable and include freedom from torture or cruel, inhuman or degrading treatment or punishment.

Torture is further outlawed by several international human rights instruments to which Uganda is signatory. (See: Article 7 of the International Covenant on

Civil and Political Rights (ICCPR) and Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR).

In **Olupot Stephen- and- AG UHRR [2003-2007] 1** the Tribunal considered the definition of torture under **Article 1** of CAT and held that from this definition, three essential elements are extracted; (1) the infliction of severe mental or physical pain or suffering, (2) by or with the consent or acquiescence of the state authorities, (3) for the specific purpose such as gaining information, punishment or intimidation.

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

**Wodada Gerald,** the Complainant testified that on 2nd February, 2007 at around 4: 30 a.m while he was at Bishop Road, in Mbale selling newspapers, five men, including two VCCU agents, one police man in police uniform and two in civilian clothes arrested him. That they took him to Mbale Central Police Station (CPS) where he was ordered to remove his shirt and trouser, beaten using firewood, and kicked and slapped him on his ears for about 2 hours, while demanding for a gun. That later in the day, they drove him to his home and searched for the gun in vain. That they took him back to Mbale CPS where he was detained for 10 days and released on police bond. That he reported three times and the bond was cancelled on ground that he had no case against him.

During cross examination, he stated that he was not beaten in the process of arresting him. That he was caned from the CID's office and detained for 10 days in the police cells. He further stated that he knew the VCCU agents who arrested him, but was not aware of the robbery complained of.

**Wambuzi Levi (CW1),** testified that on the date he did not recall but in February, 2007 at around 5:00pm, he received information that Wodada Gerald had been arrested. That the following day, he went to Mbale CPS and found Wodada Gerald making a statement. That Wodada Gerald had swollen

ankles and face. That Wodada Gerald informed him that he had been arrested on charges of being in illegal possession of firearms and he had been beaten in order to confess that he had a gun. He kept visiting the Complainant for about one week until he got released.

Upon cross examination, he stated that he never saw Wodada Gerald being beaten. He further stated that he was not present when Wodada Gerald was being released from the police. That he was informed that Wodada Gerald was arrested for illegal possession of firearm.

**Dr. Sangadi Gilbert Elijah (CW 2)** testified that he holds MBCHB (Makerere University) 2010 and that he was a medical doctor at Soroti Hospital since August 2010. He testified that according to the medical examination form dated 19th March, 2007, the Complainant, Wodada Gerald, was examined at Soroti Hospital by Dr. Opiyo J. O who found a scar on his left knee, 1 inch diameter and another scar on the left ear which was classified as 'harm'. The general remarks were that the scars were about 1 to 116 months old and there was no permanent incapacity. The medical report was signed by Dr. Opiyo J. O on the same day of 19th March, 2007.

Upon cross examination, CW2 stated that he did not personally know Dr. Opiyo, but he heard about him from senior doctors at Soroti Hospital, and also saw similar documents he had signed. That the document did not bear the stamp of Soroti Hospital, but Dr. Opio who had been a medical officer at Soroti Hospital. He further stated that Dr. Opio never indicated the instrument used against the patient in the report. In his opinion, it would not have been possible to determine from the scars the instrument used. That the general remarks indicated that there was no permanent disability on the Complainant.

During re-examination, Dr. Sangadi stated that Dr. Opiyo J. O was a medical officer at Soroti Hospital at the time he examined the Complainant.

The medical report was tendered in and admitted Exhibit C1.

**Muloni Ronald (CW3)** testified that during lunch time on 2nd February, 2007, while he was at Supreme Primary School where he worked as a teacher, he received a phone call from Wodada Gerald's sister, informing him that Wodada Gerald had been arrested and taken to Mbale CPS. That he rushed to Mbale CPS and found that Wodada Gerald had been beaten severely and had blood stains all over his body. That he was unable to talk or walk, and when Muloni Ronald asked him, Wodada Gerald informed him that he was arrested by Ali Magambo and Akim for participating in the highway robbery in Kumi. That he kept going to Mbale CPS and on the 5th day, they requested for the release of Wodada on police bond, but it was denied. That on the 8th day, police put together Wodada's file and took him to court, and subsequently granted him police bond.

During cross examination, CW3 stated that he was a friend to the Complainant for more than 10 years and that he is not related to him. He further stated that he was not present when Wodada was being arrested, but his sister informed him of his arrest. That Wodada was not in a stable condition and had been beaten. That he did not see him being beaten but he saw that his body was swollen. That Wodada was able to talk but not able to walk. He also stated that Wodada Gerald was detained for more than a week and that during his detention, he was not taken to court.

As already noted, the Respondent cross examined the Complainant and his witnesses and filed written submissions but did not present any witnesses to rebut the evidence on record despite several adjournments granted for defense.

Counsel for the Respondent submitted that the Complainant testified that he was beaten for five hours and that the Tribunal should not believe his testimony since a person beaten for all that time could have got more serious injuries than what he alleged. She further submitted that Wodada Gerald's witnesses over-exaggerated the incident when they testified that his body was swollen. That CW 3, during examination in chief, testified that the Complainant

was unable to talk or walk, while during cross examination, he stated that he was able to talk but could not walk, and that the Complainant never made this particular allegation.

Counsel for the Respondent further submitted that the Complainant was released on police bond on 14th February, 2007, but never sought any medical attention until 19th March, 2007 after reporting the matter with Uganda Human Rights Commission. She perceived the Complainant to be more interested in compensation than getting treatment for his injuries. She further submitted that the medical report interpreted by CW2 indicates that the Complainant suffered "harm' with no permanent incapacity which contradicts with the Complainant's statement.

The Tribunal does not agree with Counsel for the Respondent when she submitted that the Complainant testified that he was beaten for 5 hours. The Tribunal finds that the Complainant testified that he was beaten for about 2 hours, and not 5 hours. This implies that he could have been beaten for 2 or less than 2 hours, although he never stated as to whether he was beaten nonstop and the kind of injuries that resulted from such beatings. Wodada Gerald also never stated whether he received any treatment before visiting Soroti Hospital.

I however agree with Counsel for Respondent's submission that the witnesses exaggerated the incident, especially CW3 who testified that the Complainant could not walk or talk. It is clear that the witness was trying to 'cry more than the bereaved' because the Complainant himself never made any allegations of not walking or talking.

I also agree with Counsel for the Respondent in her submission that the Complainant run to seek justice before getting treatment for the beatings. The medical report was indeed authored after lodging this complaint and its

findings are on scars but not fresh wounds. I will therefore give the medical report less weight as far as evaluation of evidence is concerned.

On the other hand, the Tribunal finds that the arrest by VCCU and police and subsequent detention at Mbale CPS of the Complainant has not been disputed by Counsel for the Respondent. The Complainant testified that he was arrested and taken to Mbale CPS where he was beaten in order to confess to the whereabouts of a gun. The Complainant's evidence is corroborated by the evidence of CW1 and CW3 who visited him at Mbale CPS and saw the injuries on his body. Therefore it is incumbent on the state to provide a plausible explanation on how the Complainant got those injuries. In the matter of **Edison Oluka and Attorney General, UHRR [2003-2007] 51,** the Tribunal held that *"Where an individual is taken into state custody in good health but found to be injured or harmed in any way, it is incumbent on the state to provide a plausible explanation of how those injuries were caused. Once an individual is in custody of the state, he is totally powerless and his fate is squarely in the hands ofthe state".*

The Tribunal is therefore satisfied that the evidence of the Complainant and that of the witnesses is sufficient to prove, on balance of probabilities, that he was subjected to torture, cruel, inhuman or degrading treatment or punishment by the said VCCU agents and Police Officers.

The Complainant suffered physical pain inflicted by police officers attached to Mbale central Police Station who are public officials for the purpose of obtaining form him information as to the whereabouts of a gun.

THEREFORE, I 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 and the claim by the Complainant in the instant complaint is upheld. ## **Issue II: Whether the Complainant's right to personal liberty was violated by the Respondent's Agents**

The right to personal liberty is protected by Article 23 of the Constitution of the Republic of Uganda and various International and Regional Human Rights Instruments to which Uganda is signatory. Article 3 of the Universal Declaration of Human Rights (UDHR) of 1948, provides for everyone's right to life, liberty and security of person, and also prohibits arbitrary arrest and detention of anyone except where the established law allows this to be done. Similarly, Article 9 of the International Covenant on Civil and Political Rights (ICCPR), 1976 which Uganda has signed and ratified, prohibits arbitrary arrest and detention, or any limitation on individuals' right to personal liberty, unless this is done on grounds and procedures established by law.

At the Regional level, Article 6 of the African Charter on Human and Peoples' Rights of 1997 guarantees for "every individual the right to liberty and to security of person'; and reiterates that this right can only be constrained "for reasons and conditions previously laid down by law".

Article 23(1) Constitution of Republic of Uganda 1995 provides that; *"No person shall be deprived of personal liberty ".* However, the same Article gives exceptional circumstances under which a person's right to liberty may be deprived.

Article 23 (l)(c) provides that a person can be deprived of his or her right to liberty if the deprivation is for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that a person has committed or is about to commit a criminal offence under the laws of Uganda.

On the other hand, Article 23 (4) of the Constitution provides that a person arrested or detained for the purpose of bringing him or her before court in execution of an order of court or upon reasonable suspicion of his or her having committed an offence under the laws of Uganda shall if not earlier released, be brought to court as soon as possible, but in any case not later than forty-eight hours from the time of his or her arrest.

This Tribunal held in the matter of **Stephen Erau-and- Attorney General& 3 others, UHRC No.397/99; (2002) U. H. R. R, page 36,**that any detention in contravention of this provision is a violation of the suspect's right to personal liberty.

The Complainant testified that he was on 2nd February 2007 arrested and detained at Mbale CPC for 10 days before being released on police bond. But he does not indicate the date of his release. Complainant's witness, CW1, stated that he visited the Complainant on the morning following the day of his arrest and kept visiting him for a period of about one week when he was released; while CW3 testified that he visited the Complainant at Mbale CPS from the day of his arrest on 2nd February, 2007; on the 5th day he requested for the Complainant's release on police bond but it was denied and on the 8th day, he was produced in court and released on police bond. In the circumstances, I will make reference to the Police bond form that was submitted to the Commission and is attached on the Complainant's statement of Complaint. The police bond form indicates that the Complainant was charged with the offence of robbery and was granted police bond on 14th February, 2007.

Counsel for the Respondent submitted that the evidence of the Complainant and that of his witnesses is inconsistent and contradicts each other on the number of days the Complainant was in detention. She submitted that the Complainant testified that he was detained for 10 days; CW1 testified that the Complainant was in detention for about one week while Mulono Ronald CW 3 stated that he was detained for 3 days.

While I do agree with Counsel for the Respondent that there were inconsistencies on the number of days stated by the Complainant and his witnesses. I disagree that CW3 mentioned 3 days of detention. During examination in chief, CW3 testified that the Complainant was granted police bond after being produced in court on the 8th day of his detention, and during cross examination, he stated that the Complainant was detained for more than one week. Nonetheless, I find that the witnesses never witnessed the Complainant's release.

Counsel for the Respondent also referred to the Police bond dated 14th February, 2007 which indicates the date on which the Complainant was released. I have taken time to look at this police bond form (as attached on the Complainant's statement of complaint) and I note that whereas it indicates to have been issued by D/ASP Mugido to Wodada Gerald, charged with robbery to report to Regional Police Headquarters Eastern on 21st February, 2007, the form does bear any stamp and did not indicate the issuing police institution. In the circumstances, I am not convinced that the police bond form was issued by Mbale Central Police Station and further no effort was made to exhibit it.

In the circumstances, I find that whereas the Complainant was arrested on allegations of possession of a firearm and detained at Mbale Central Police Station, he has not provided sufficient evidence to prove that he remained in detention for more than 48 hours from his arrest as to amount to a violation of is right to personal liberty.

I find that his arrest was justified within the meaning of Article 23 (1) (c) of the Constitution as he was suspected of having committed a crime of robbery or being in illegal possession of firearm. This Tribunal has not received sufficient evidence to prove that the state agents failed to release him on police bond or produce him in court within 48 hours as to amount to a violation of the Complainant's right to personal liberty contrary to Article 23(4) of the Constitution of the Republic of Uganda. In the circumstances, this complaint is not allowed.

## **(iii) Whether the Respondent (Attorney General) is liable for the violations against the Coinplainant's rights\**

As resolved in the above issues, there was a violation of the Complainant's right to 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 matter, the VCCU agents and the Police officers attached to Mbale CPS who arrested the Complainant and subjected him to torture at the said Police Station were in the course of their employment. These officers were identified by the Complainant and were known to him prior to his arrest, thus it is proper for their master, 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 Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment by police officers attached to Mbale CPS who individually and severally were at the time serving as employees of the state.

## **(iv) Whether the Complainant is 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 Complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment, it follows that he is entitled to compensation by the Respondent.

In the matter of **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 officers against the Complainant were cruel, oppressive, arrogant, criminal and completely unprovoked and impossible to justify. I will consider the evidence on record to the effect that the complaint was beaten, but did not seek medical attention immediately upon his release. I will also consider the medical report which indicates 2 scars and classified the harm as 'harm'. The remarks on the medical report indicate that the complainant did not suffer any permanent disability or incapacity. I will also consider the fact that the right to protection from torture or cruel, inhuman or degrading treatment is an absolute right under Article 44(a) of the Constitution of the Republic of Uganda.

In the instant case, the Complainant prayed to this Tribunal for compensation but never stated any amount. Counsel for the Respondent deemed a figure of UGX 2,000,000/= (Uganda Shillings two million) appropriate for the said torture.

The tribunal notes the years which have since elapsed and the current value of money as held in the case of **Matiya Byabalema and others Vs Uganda Transport Company SCCA No 10 of 1993** where it was stated that "courts (in this case, the tribunal) 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".

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

1. The complaint is partially allowed.

**ORDER**

- 2. The Attorney General (the Respondent) is ordered to pay to the Complainant Wodada Gerald, a 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 said amount of U. Shs 3,000,000/ (Uganda Shillings Three million shillings) will carry interest at court rate from the date of this decision until payment in full. - 4. 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 this decision.

**DATED AT SOROTI on this day of....jS^fSvO^.,2016**

**HON. (RTD.) JUSTICE GIDEON TINYINONDI**

**PRESIDING COMMISSIONER**