Zinda Umar v Attorney General (Complaint UHRC 36 of 2007) [2016] UGHRC 17 (14 September 2016)

Full Case Text

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#### THE REPUBLIC OF UGANDA

## THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

#### **HOLDEN AT KAMPALA**

## COMPLAINT NO: UHRC/36/2007

ZINDA UMAR ::::::::::::::::::::::::::::::::::::

And

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

BEFORE COMMISSIONER JOSEPH A. A ETIMA

#### **DECISION**

The Complainant Zinda Umar, lodged this complaint on 20th February 2007, alleging that on 15th January 2007 he was arrested by police men from Mpigi police station on allegations that he had participated in the theft of computer accessories (UPS's) from Mpigi Local Government headquarters. He was detained at Mpigi Police station for two days and on 17th January 2007 taken to Mayembe Gambogo Army barracks by the DPC Mpigi police station. While at the Army Barracks the District Internal Security Officer of Mpigi ordered soldiers to beat him up. He was beaten several times all over his body while being tied by the legs and hanged upside down. After which, he was driven back to Mpigi Police station where he was detained for another week without being produced in court. The Complainant contended that the actions allegedly committed against him by the Respondent's agents amounted to a violation of his right to personal

liberty and subjection to torture, cruel inhuman or degrading treatment of which he holds the Respondent vicariously liable.

The Respondent through Mr. Richard Adrole a State Attorney denied liability

## The issues of contention to be determined by the Tribunal

- 1. Whether the Complainant's right to personal liberty was violated ; - 2. Whether the Complainant was subjected to torture, cruel, inhuman or degrading treatment or punishment - 3. Whether the Complainant is entitled to compensation

In determining these issues, the burden of proof lies with the person asserting that his or her rights have been violated, who in this case is the complainant. This is in line with Section 101 (1) of the Evidence Act, Cap 6 Laws of Uganda, which provides 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."

### Section.102 of the Evidence Act further provides 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."

Before I determine the above issues I wish to note from the record that counsel for the respondent did not call any witnesses in defence but only cross examined the Complainant and his witnesses.

# Whether or not the Complainant's right to personal liberty was violated

The right to personal liberty is a positive right protected by human rights law at International and Regional African levels as well as the Constitution of the Republic of Uganda 1995

Article 23 of the Constitution protects individuals' personal liberty and outlines circumstances under which a person may be deprived of personal liberty. Thus a person can only be deprived of personal liberty on lawful grounds listed under Article 23 of the Constitution.

The International Covenant on Civil and Political Rights (1966) under Article 9(1) provides that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.

**Further Article 9 (3)** states that every one arrested or detained on a criminal charge shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release

Article 23 (1), in particular, caters for circumstances under which a person can be deprived of the right to personal liberty. Article 23 (1) (c)specifically provides that a person's right to personal liberty can be deprived for purpose of bringing that person before a court in execution of the order of a court *or* upon reasonable suspicion that the person has committed or is about to commit a criminal offence under the laws of Uganda.

The Constitution and the International Covenant on Civil and Political Rights therefore guarantees the right to liberty and security of the person which in its full meaning prohibit unlawful arrests or subjecting a person to arbitrary arrest and detention. Any one whose personal liberty is to be limited by arrest must be arrested upon reasonable grounds and if not earlier on released, must be produced before a court of law within (48 hours) in accordance with law. Any arrest and detention done in contravention of these requirements constitute a violation of the right to personal liberty.

In the facts before the tribunal, the Complainant, Zinda Umar, stated that on 15th January 2007 he was arrested by policemen from Mpigi police station on allegations that he had participated in the theft of computer accessories (UPS's) from Mpigi Local

Government headquarters. He added that he was detained until the 23rd January 2007 when he was produced in court and granted bail.

During cross examination the complainant confirmed that he was arrested on 15th January 2007 and 23rdJanuary 2007 was released.

The Complainant's witness Ndesewo Ali stated that on 15th January 2007 he was arrested with Zinda Umar on allegations that they had stolen computer accessories (UPS's) from Mpigi Local Government headquarters. They were detained at Mpigi police station upto the 23rd January 2007 when they were produced in court and granted bail. He added that the matter was heard and they were acquitted. During cross examination the Complainant's witness Ndesewo Ali stated that he was not sure about the number of days they stayed in detention without being produced in court but he postulates to be around 9 to 10 days. He added that Zinda Umar was released the following day after he had received bail.

In determining the actual dates and duration of the Complainant's arrest and detention in violation of his right to liberty as alleged, Rule 21 (4) of the Uganda Human Rights Commission (Procedure) Rules 1998, empowers the Commission where deemed necessary, to use "its discretion" and call such additional evidence it considers necessary.

The DPC of Mpigi Police station Nuwamanya Charles Evans in a letter dated 27th June 2007 addressed to the Uganda Human Rights Commission and in response to the allegations stated that on 15th January 2007, the Chief Administrative Officer (CAO) of Mpigi reported a case of office breaking and theft vide SD 21/15/1/2007 in which eight (8) computers were stolen from four (4) offices. That Sgt Ndesewo and PC Zinda were arrested as prime suspects since they had been assigned to guard the office block during the night of the breaking in. That on $24/1/2007$ they appeared before the chief magistrate's court Mpigi and pleaded not guilty and subsequently bailed. No complaint was raised in court by PC Zinda of torture.

In a letter dated 27th August 2007, also addressed to the Uganda Human Rights Commission, the DISO Mpigi district, Lt Emmanuel Habomugisha, denied the allegations but accepted that there was theft and that the matter was handled by Mpigi Central Police station. He stated that he was not directly involved in the investigations except from having discussions with the Resident District Commissioner (RDC), CAO and LAP commanders who were on duty. He concluded by stating that the DISO and UPDF were not involved in the alleged torture and that such torture did not take place as claimed by the Complainant.

I have made a finding from the evidence adduced above that Zinda Umar was arrested and detained at Mpigi Police station for a total of nine (9) days, from 15th January 2007 to 23rd January 2007. Taking into consideration of his initial two (2) days detention as lawful, he was therefore in illegal detention for seven (7) days. It was thus the duty of the police to take him to court or release him on bond within 48 hours of his arrest. The continued detention thereafter was a breach of the provisions of Article 23(4)(b) of the Constitution and hence amounted to a violation of his right to personal liberty.

The police men from Mpigi Police station who arrested and detained the Complainant at all material time were acting in the course of their duties and employment as sevants of the government. According to Article 119 of the Constitution of Uganda 1995, the functions of the Attorney General among others is to represent the Government in courts or any other legal proceedings to which the government is a party thus the Respondent is vicariously liable for those actions.

Whether or not the Complainant was subjected to torture, cruel, inhuman or degrading treatment or punishment.

The Universal Declaration of Human Rights (UDHR), 1948 under Article 5 provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Likewise, Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1996 absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.

The African Charter on Human and Peoples' Rights (ACHPR) 1981 under Article 5 also reiterates the total prohibition of violation of the same aforementioned right.

The Constitution of the Republic of Uganda 1995 under Article 24 also prohibits subjection of anyone to any form of torture or cruel, inhuman or degrading treatment or punishment. This right is provided for as a non derrogable right under Article 44.

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until 18th September 2012, upon the commencement of the Prevention and Prohibition of Torture Act 2012. However, since law cannot be applied retrospectively, the only definition that can be used in this matter is the one provided by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, which Convention Uganda ratified.

#### **Article 1** there of states 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 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. It does not include pain or suffering arising only from, inherent in or incidental *to lawful sanctions."*

The definition in Article 1 of the CAT has been applied in Uganda in the matter of Fred Tumuramye Vs GeraldBwete and Others UHRC NO 264/1999, where Commissioner Aliro Omara spelt out the elements of torture as follows;

$\mathsf{6}$ - a) An act by which severe pain or suffering whether physical or mental is intentionally $a$ inflicted on a person - b) For a purpose such as obtaining information, or a confession, punishment, intimidation, coercion or for any reason based on discrimination - c) The act is inflicted by or at the instigation of or with the consent or acquiescence of a $c$ public official or other person acting in an official capacity.

I shall therefore look for proof of these four ingredients, and particularly the first three before making my decision.

The complainant testified that after his arrest and detention at Mpigi police station, the DPC handed him over to the DISO Mpigi, , who took him to Mayembe Gambogo Army barracks. While on the way, the DISO kept asking him to reveal the where abouts of the stolen computer accessories. The complainant responded by informing him that he was not on duty at the time of the theft, however the DISO ordered the soldiers to tie his legs with a rope and hang him upside down. He added that the soldiers then hang him upside down and started to beat him all over the body with sticks. He further alleged that while he was being beaten the DISO put him at a gun point and threatened to shoot him. That he was hanged for some time and started bleeding through the nose. The soldiers later cut the rope without supporting him and he fell down hitting his back on the ground. He was later driven back to Mpigi police station and detained that the DPC ordered the police men not to allow his relatives to visit him and see him in such a situation. He added that when he was granted bail on 23rd January 2007 he went to ACTV for treatment.

During cross examination the complainant stated that he went to ACTV for treatment and that he still had visible scars on his body as a result of the torture.

The Complainant's witness Ndesewo Ali stated that on 15th January 2007 he was arrested with Zinda Umar the Complainant on allegations that they had stolen computers from the Mpigi local government Adminstration block. That they were detained at Mpigi central police station and on 17th January 2007 a police man picked Zinda Umar from the cells and took him to a place he didnot know. That Zinda Umar was brought back at around 3:00pm the same day but could not walk he was crawling he had marks of ropes on his legs, marks of sticks on his back and in too much pain. He added that they stayed in the cells without the complainant getting any medication.

The expert witness Dr. David Kyazze testified that Zinda Umar reported at ACTV on 19th February 2007 with a history of being tortured, he complained of backache, difficulty in walking and standing for long. On examination the expert witness's findings were the complainant was in a fair general condition, had scars on the body and other body systems were normal. He added that the complainant was tortured in January and he went for treatment in February and that is why he could not tell whether the injuries were fresh. He classified the injuries as soft tissue injuries. The expert witness's report was admitted in evidence as an exhibit and marked as CX1.

During cross examination the expert witness stated that when he examined the complainant on 19th February 2007, he was fairly well apart from the scars he saw on his skin which could have been caused by lashes and that the injuries were not fresh injuries. He added that he couldnot conclusively say that the complainant was tortured because they get their opinions from the physical examination and history and that is the basis of their reports.

The finding of the tribunal on the foregoing issue is that there is no evidence to contradict the complainant's assertion that he was beaten, tied with ropes and hanged upside down. The complainant's statement is confirmed by his witness Ndesewo Ali and the expert witness on examination of the complainant who stated that the complainant had scars on his body which could have been caused by lashes. I therefore find no grounds to disbelieving the complainant, the beating which were inflicted on him amounted to torture within the definition quoted earlier. The threatening of the complainant and hanging him upside down was not only torture but also cruel, inhuman and degrading treatment. These acts fall within the definitions given above and also a finding of fact that the police men and soldiers who arrested and tortured the complainant acted in the course of their duties. The Attorney General acknowledged this by agreeing to defend and is therefore held vicariously liable for these violations.

### Whether the complainant is entitled to compensation.

Having held that the respondent's servants/agents violated Zinda Umar's right to personal liberty, and freedom from torture, cruel, inhuman and degrading treatment or punishment it follows that he is entitled to compensation by the respondent.

Under Article 23(7) a person unlawfully arrested, restricted or detained by any other person or authority, shall be entitled to compensation from that other person or authority whether it is the state or an agency of the State or other person or authority

# Further under Article 53(2) (b) & (c) of the Constitution:

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

$(a) \ldots$

- (b) Payment of compensation; or - (c) Any other legal remedy or redress."

In order to determine the suitable quantum of damages to be awarded for the violations, I will take into consideration previous awards in cases or complaint's similar to the instant one.

### Violation of the right to Personal liberty

The complainant Zinda Umar was held illegally by the police for 7days. This tribunal has a precedent of Stephen Gidudu and Attorney General UHRC No. 210 of 1999 where the complainant was awarded U. Shs.2,000,000/= for every 7 days spent in detention.

The Complainant spent 9 days in police custody, two of these days are covered under the Constitutional 48 hour rule already explained above. The Complainant's right to liberty was deprived for 7 days and under this heading I award him U. Shs.2,500,000 putting into consideration the current value of money.

## Violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment

In respect to this issue the Complainant has also proved to the satisfaction of the Tribunal that on balance, there is a high probability that his right of freedom from torture, cruel and inhuman treatment or punishment was violated by the Respondent's agents. He is therefore also entitled to recover from the Respondent compensation by way of damages.

ATTORNEY GENERAL UHRC/SRT/206/2005 the In **OMOLA MOSES** vs. complainant was beaten by the O/C Kamod police station with a stick and suffered soft tissue injuries on the eye, left arm, back and buttocks. The injuries were classified as harm and the Tribunal awarded the complainant UG Shs 3,000,000/- (Three million) as compensation for the violation of his right to protection from torture, cruel, inhuman and degrading acts. Taking into account the value of money currently and the nature of the right that was violated which is non-derogable, the magnitude of the injuries in this case which are closely similar to the ones in the cited case with regard to the complainant's injuries and the expert's findings that he suffered soft tissue injuries. I accordingly award Ug Shs 4,000,000 (Four million Uganda Shillings) as compensation for the violation of the complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

#### **ORDER**

- 1. The Complaint is allowed. - 2. The Respondent is ordered to pay the Complainant, Mr. Zinda Umar a total sum of Ug. Shs 6,500,000= (Six million five hundred thousand Shillings) as general damages broken down as follows: - a) General damages for the violation of his right of freedom from torture or cruel, inhuman or degrading treatment or punishment - Shs. $4,000,000/$ = - b) General damages for the violation of his right to personal liberty -Shs. $2,500,000/=$ .

TOTAL - Shs. $6,500,000/=$

3. The Ug . Shs 6,500,000= will carry interest at 10% per annum 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.

DATED AT KAMPALA THIS DAY OF 2016. JOSEPH. A. A ETIMA PRESIDING COMMISSIONER 11