[2016] UGHRC 3


## THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL

### AT KAMPALA

### COMPLAINT NO. UHRC/06/2009

**COMPLAINANT AKOT CATHERINE**

#### **VERSUS**

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

### **BEFORE HON. COMMISSIONER JOSEPH A. A. ETIMA**

## DECISION

The Complainant lodged this complaint against the Respondent seeking compensation for violation of her rights to personal liberty and freedom from torture or cruel, inhuman or degrading treatment or punishment. Shealleged that on 2^nd December 2008 at around 9:00am, while at her home, two unarmed men in civilian clothesled by a one Suleiman, a shamba boy at Leon's home picked her from her home. That they took her to Leon's home where she worked as a housekeeper; she refused to hand over the house keys and wastaken to Kireka at Violent Crime Crack Unit (VCCU) offices. That VCCU men immediately took her back to Leon's home and then to her home which they searched but recovered nothing. That she was taken back to VCCU Kireka offices where they accused her of theft of 5 pairs of earrings, 5 necklaces and other jewelry. That she was slapped, herhair pulled and subjected to beatings

with batons, pieces of wood and wires on all her joints for her to provide information. She further alleged that she was detained until the 19^th December, 2008when she was produced in Kiira Court and charged with burglary and theft. That she was remanded to Luzira prison and released on bail on 23^rd December, 2008. That the chargesagainst her were dismissed on 13^th June 2009.

The Respondent through his representative, Mr. Kasibayo Kosiadenied the Complainant's allegations.

### **ISSUES**

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

Before I resolve the above issues I wish to state that this matter was mostly heard by former Members of the Commission, CommissionerF. M Wangadya andthe Late CommissionerThecla Kinalwa (RIP). I have therefore based this decision on their record of proceedings.

I also wish to note that the Complainant was represented by a private advocate, Mr. Mukwaya Kizito Deo of Rwakafuuzi & Co. Advocates, who at the same time filed submissions in this matter. Inhis submissions at page.2, Counsel stated that he would not to rely on the testimonies of two witnesses (Loiman John Robert (CW2) and Mugisha James (CW3) since they were not cross examined. I will make a comment on this submission within the resolution of the first issue.

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Furthermore, I note from the record that apart from cross examining the Complainant and her witness (the medical doctor), the Respondent neither calleddefense witnesses nor filed written submissions in defense of the matter. Nonetheless, the Complainant retained the burden to prove her case against the Respondent to the satisfaction of the Tribunal on the 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.

#### the Respondent's agents/servants violated the Whether $(i)$ Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment;

The UN Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or 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"

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

The Constitution of the Republic of Uganda under Article 24 prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. It was also 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 and cruel, inhuman ordegrading treatment or punishment.

Torture is further out lawed by several international and regional 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).

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 It further defines "to torture" as: "to hurt making them give information". someone deliberately in a very cruel way as a punishment or in order to make them give information"

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;

the infliction of severe mental or physical pain or suffering, $\dot{\mathbf{1}}$ .

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- by or with the consent or acquiescence of the state authorities, ii. - for the specific purpose such as gaining information, punishment or iii. intimidation.

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

**Akot Catherine (CW1)**testified thaton $2^{nd}$ December, 2008 at around 9:00am, while at her home, two unarmed men in civilian clothes, led by a one Suleiman, a shamba boy at Leon's home picked her from her home. That they took her to Leon's home where she worked as a housekeeper and asked her for the house keys, but she refused to tell them, unless it was Achanda who had asked. That they drove her to Kireka at Violent Crime Crack Unit (VCCU) offices. That VCCU men immediately took her back to Leon's home and then to her home which they searched but recovered nothing. That she was taken back to VCCU Kireka offices where they accused her of theft of 5 pairs of earrings, 5 necklaces and other jewelry. That they took her behind a house and started beating her with batons, pieces of wood and wires on all her joints. That they slapped her while telling her to talk. That they were many and all beat her for one hour. That they also pulled her hair and that one of them hit her on the right jaw which broke one of her premolars. She further alleges that she was detained for 16 days and thereafter produced in Kiira court on 19th December, 2008. That she was remanded to Luzira prison where she was detained for 4 days and released on bail on 23^rd December, 2008. That the charges of burglary and theft where dismissed on 13^th June 2009.

During cross examination, she stated that that she was arrested in December, 2008 and released on 19^th December, 2008. That she went to Kamwokya for treatment and was given a medical form as evidence of torture. That she went to Mulago to see a dentist but it was expensive for her, thus did not get any medical reports from there.

Upon re-examination she stated that she was tortured from Kireka and that she first got treatment from Mbuya Parent Clinic and then was referred to the African Center for treatment and Rehabilitation of Torture Victims (ACTV)by UHRC office atKibuye. She further stated that she was never burnt with cigarettes but has scars. She also stated that she was arrested from her home on 2^nd December, 2008 and produced in court on 19^th December, 2008. That she treats her tooth with pain killers and keeps going to clinics whenever she gets pain. She stated that she had other medical documents at home, but she did not bring them to the Tribunal.

Dr. David Kyazze CW4, testified that he is a medical doctor stationed at Children's Clinic Kampala but had also worked at African Center for Treatment of Torture Victims (ACTV) between 2002 and 2010. That he holds MBCHB (MUK) 1980 and a Diploma in Tropical Medicine & Hygiene from University of Witwatersrand, 1985. That while working at ACTV, his duties among others included receiving clients, treating them and recording findings and recommendations. That as per the Client Monitoring Questionnaire, Akot Catherine reported to ACTV on 12^th January, 2009 with complaints of having been beaten non-systematically and systematically. That she also complained of pain in both knees, ankles and chest. That upon examination, using torture methods, he established that Akot had pain on touching both knees, had scars on the right thigh and swelling at the lower jaw, with some broken teeth. That she could not kneel or squat thus there was a high degree of support between the physical examination findings and the allegations of torture. That the cause of the injuries was blunt trauma but the age of injuries were not documented. He further stated that the scars were probably caused as a result of burns of cigarettes. That Akot Catherine was able to stand and walk on her own and that he did not see anything unusual on her scalp. He stated that the injuries on her could have been suffered days, weeks, months or even years back. He further stated that it is possible that he is not the doctor who first examined

her, but he may have also examined her at some moment. That he authored the report but he did not document whether it was her left or right jaw that was affected, and that he could not remember seeing any damage on her cheeks. He stated that he is the one who prepared and signed the document.

The medical document was tendered in and admitted as Exhibit C. I. by the Tribunal.

Upon cross examination, Dr. Kyazze admitted that the medical report did not have his name, but his signature was appended. That the Complainant informed him that she had been treated with hot water and painkillers before going to ACTV. He further said that it is possible for one to stay with pain without going to a hospital. That on the issue of the teeth, he recommended her to see a dentist but never made any referral note. He stated that he saw burns and that the scars must have been recent. He added that he could not tell the age of tenderness. That it is true she informed him that she had got treatment of hot water and painkillers from her husband prior to visiting ACTV.

During re-examination, Dr. David Kyazze stated that the injuries would still be visible after one month and that she had injuries on both knees and some broken teeth. He then added that the injuries are not seen, because at times a person can be hit with an object and injuries are not seen. He stated that the report before Tribunal contained the entire examination and that he also recommended physiotherapy of the Complainant. He further said that he make remarks on the report about the tenderness on the knees and that the Complainant could not squat or kneel. He added that the tenderness could last years.

During the hearing, Counsel for the Complainant submitted that he could not locate the Complainant's witnesses (Loiman John Robert (CW2) and Mugisha James (CW3) for cross examination. He prayed to close the Complainant's case without calling any other witnesses. This prayer was granted and the matter adjourned for defence and subsequently for submissions.

As already noted, Counsel for the Complainant latter submitted that the tribunal should dispense with the evidence of these two witnesses since they had not been cross examined.

The purpose of cross examination is to elicit favourable facts from the witness or to impeach the credibility of the testifying witness. The tribunal finds that the right to a fair hearing can be observed through following the procedures laid down by the laws of Uganda, and it would be fair and just to give a chance for the Respondent to cross examine all the witnesses. I therefore concur with Counsel for the Complainant and disregard the evidence of the above mentioned witnesses.

However, I note with concern that Counsel for the Complainant did not show any efforts to cause the attendance of the witnesses for cross examination and yet the Respondent's Counsel was available and willing to cross examine them. These witnesses had earlier on appeared before the tribunal after the issuance of summons and the Commission had their addresses and therefore it could not be that he was unable to locate them.

Considering the issue before me, Counsel for the Complainant submitted that the testimony of the Complainant revealed that she was severely beaten by police officers at VCCU premises at Kireka using batons, wooden sticks and electric wires so as to confess to the charges of theft. He further submitted that the evidence of torture was corroborated by that of Dr. David Kyazze who carried out medical examination on her.

As already cited, the right to freedom from torture can only be said to have been violated if the Complainant proves on the balance of probabilities that there she experienced the infliction of severe mental or physical pain or suffering, by or with the consent or acquiescence of the state authorities, for the specific purpose such as gaining information, punishment or intimidation.

It is the Complainant's testimony that she was arrested from her home on allegations of theft and taken to VCCU Kireka where she was severely beaten by the officers using batons, wooden sticks and electric wires so as to confess to the charges of theft. That as a result of the beatings, she sustained severe injuries, including broken teeth.

This testimony as to the injuries sustained by the Complainant corroborated by the testimony of CW4, the medical doctor who treated the Complainant at ACTV on 12^th January 2009 and compiles the report exhibited as CX 1. The witness established that the Complainant had pain on touching both knees, had scars on the right thigh and swelling at the lower jaw, with some broken teeth. That she could not kneel or squat thus there was a high degree of support between the physical examination findings and the allegations of torture.

I find that the evidence before me only proves one of the elements of torture; that the Complainant sustained severe physical pain and suffering that was intentionally inflicted upon her.

There is no evidence to support the allegations that the severe pain and suffering was inflicted by the VCCU officials (a state authority) for the purpose of obtaining information or a confession (to the crime of theft).

The Complainant did not produce any evidence to support her testimony that she was indeed arrested on allegations of theft and detained at VCCU Kireka from where she was severely beaten and therefore had contact with the security agents; to show that she sustained the injuries during her detention. In the circumstances, her testimony remains mere allegations.

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Therefore, I find that the Complainant did not on the balance of probabilities prove that the Respondent's agents violated her right to freedom from torture or cruel, inhuman or degrading treatment or punishment and the claim by the Complainant of torture in the instant complaint is therefore disallowed

## $(ii)$ 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. For example, Article 3 of the Universal Declaration of Human Rights (UDHR) of 1948, which 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, the African Charter on Human and Peoples' Rights of 1997 under Article 6 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".

The Constitution of Republic of Uganda 1995 under **Article 23** guarantees the right to personal liberty and exceptional circumstances under which a person's right to liberty may be deprived. **Article 23(1)(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 has held in the matter of **Stephen Erau-and- AG & 3 others,** UHRC No.397/99; Uganda Human Rights Commission Reporter (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 Complaint testified that she was arrested on allegations of theft on $2^{nd}$ December, 2008 and detained at VCCU Kireka offices untilthe 19th December, 2008 when she was produced in Kiira court, charged with burglary and theft and remanded to Luzira Prison. That she remained at Luzira Prison until 23rd December 2008 when she was released on bail. That the charges of burglary and theft were dismissed on 13thJune 2009.

These allegations if they are proved would amount to the violation of her right to personal liberty contrary to Article 23(4) of the Constitution.

On the contrary, I find that the Complainant did not provide any evidence, oral or documentary to prove her arrest, and. The Complainant neither produced any witness to provide oral evidence of her arrest and detention nor any documentary evidence like a lock up register from VCCU Kireka, Kiira Court papers like remand warrant to Luzira prison, release on bail form or the record

of proceedings of the criminal case and the dismal ruling. In the circumstances, the tribunal finds it risky to entirely rely on her evidence alone.

Therefore, I find that the Complainant did not on the balance of probabilities prove that the Respondent's agents violated her right personal liberty, and the instant complaint is therefore disallowed

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

As resolved in the above issues, there was no sufficient evidence to prove on balance of probabilities that the Complainant's rights to personal liberty and to freedom from torture or cruel, inhuman or degrading treatment or punishment were violated by the Respondent's agents/servants.

I therefore find that there is insufficient evidence two point to the liability of the Respondent in this matter.

## $(iv)$ Whether the Complainant is entitled to compensation:

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

(c) any other legal remedy or redress."

Having resolved issues 1, 2 and 3 in the negative, the Tribunal is not satisfied with the evidence produced by the Complainant I find that the Complainant is not entitled to any compensation as prayed.

## **ORDER**

- 1. The complaint is disallowed and is hereby dismissed. - 2. 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 KAMPALA on this $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{$

HON. JOSEPH A. A. ETIMA PRESIDING COMMISSIONER