[2017] UGHRC 3


# THE REPUBLIC OF UGANDA IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL HOLDEN AT KAMPALA **COMPLAINT NO: UHRC/179/2006**

ALEX TWINOMUGISHA ::::::::::::::::::::::::::::::::::::

# **AND**

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

# (BEFORE HON. COMMISSIONER JOSEPH A. A ETIMA)

# **DECISION**

The Complainant Alex Twinomugisha alleges that on the 16^th day of September 2006 while digging with other prisoners at Kyamulibwa prison shamba at around 8:30am, Prison warders Paul and Mayanja from Kyamulibwa prison beat him up to keep up the pace of digging. He further alleged that at 3:30pm, he felt he was too tired to continue and therefore stood for few minutes and asked for drinking water. That at this time the two warders started beating him to the extent that he sustained several injuries the back and shoulder. The Complainant contends that the actions committed against him by the Respondent's agents amounted to a violation of his right to freedom from torture, cruel, inhuman or degrading treatment or punishment of which he holds the Respondent vicariously liable.

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

- 1. Whether the Complainant's right to freedom from torture, cruel, inhuman, or degrading treatment or punishment was violated. - **2.** Whether the Complainant is entitled to any remedy.

In determining these issues, the burden of proof lies with the person asserting that his or her rights have been violated, in this case, 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" and

# 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 that both parties tried to settle the matter amicably but failed to come to a consensus, the tribunal decided to continue with hearing the matter and hence this decision.

Issue one: Whether the Complainant's right to freedom from torture, cruel inhuman or degrading treatment or punishment was violated by the Respondent's agents 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 reiterates the total prohibition of violation of the same aforementioned right.

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The Constitution of the Republic of Uganda 1995 under Article 24 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(a) of the same constitution.

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until 18^th September 2012, upon the commencement of the Prevention and Prohibition of Torture Act 2012. However, since law cannot be applied retrospectively, I will use the definition of torture provided by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)1984, which Convention Uganda ratified.

**Article 1** of the UNCAT defines torture to mean:

"...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 UNCAT has been applied by this Tribunal in the matter of Fred Tumuramye -and-GeraldBwete&Others UHRC NO 264/1999, where Commissioner AliroOmara spelt out the elements of torture ass;

- 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

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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 evaluate the evidence available to establish whether the Complainant has proved these four ingredients, and particularly the first three.

Alex Twinomugisha testified that on 16^th September 2006 while he was a prisoner in Kyamulibwa local government prison, he was taken to work in someone's garden. Prison warders Mayanja and Mukubwa started beating him using sticks and asked him to continue digging. At about 3:30pm, he asked for water but was instead beaten by the Prison warders. The prison warders beat him all over the body to the extent that the owner of the garden tried stopping them but instead alleged that he was trying to escape. He spent that night in pain while his friends nursed him. The following day, he narrated his ordeal to his wife Sarah Nampija who had visited him. The LC I Chairman in company of his father, a young brother and Richard Sekabira also visited him and upon the advise of Sekabira Richard, he gave Ug. Shs.240,000/ $=$ to a one Bull to secure his release. He further alleged that he was produced in the Magistrate's court, charged with escaping from prison, he was ordered to pay a fine of UG. Shs100,000/ $=$ which his father paid and he was released. That after the two days of his release, he sought medical treatment from Kyamulibwa health Centre. A one Saweba brought him to a police surgeon Kampala who examined him and gave him a medical document.

During cross examination, the Complainant stated that he was imprisoned because of fighting with a one Paul Mayobwe over a failed sale of maize deal.

He also confirmed that he had a medical report which showed the extent of injuries he had sustained. That he did not escape from the farm, he only asked for drinking water and that's why he was beaten. He admitted that he was charged and convicted of the offence of trying to escape. When asked whether he had any supportive medical evidence to his impotence, he answered in the negative.

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Matia Kakooza the Complainant's first witness testified that he could not recall the month and dates of the incident but that it was in 2006. He requested for prisoners to work on his farm and 10 prisoners including the Complainant were assigned. That as he took for the prisoners lunch, he found the Complainant being beaten by one of the prison warders called Mayanja, saying that the Complainant was trying to escape. He added that, Mayanja was with another prison warder; they beat the Complainant all over his upper part of the body using sticks. During cross examination, Matia Kakoza stated that he did not report the prison warders anywhere but instead cautioned them. He confirmed that the Complainant was beaten from the waist line upwards. He also stated that he did not know the Complainant before he went to work in his garden. He met the Complainant after he came with summons to testify on his behalf about the incident.

Doctor Nsereko Mukasa, testified that he worked as a medical doctor, held a Bachelor of Medicine and bachelor of Surgery degree of Makerere University, Masters in medicine from Makerere University and a Graduate diploma in forensic pathology from the college of medicine in South Africa. That he had worked as a medical doctor for 34 years. He stated that the document before the tribunal was a police form 3 which was a request of a medical examination issued on 1^st October 2006 in respect of one Twinomugisha Alex who was a Complainant in the case of assault. He examined the said Twinomugisha on that same day and his findings were that he had multiple old (2 weeks) bruises across the whole back which in his opinion amounted to grievous harm seriously affecting the complainants' health. He added that the injuries were inflicted by use of big sticks. He confirmed being the author of the police form 3.

The police form 3 dated 1^st October 2006 was admitted in evidence as the Complainants' exhibit.

During cross examination, Doctor Nsereko Mukasa stated that; when he examined the Complainant, he did not give him treatment. He also added that the injuries/bruises

were old and septic and that it was a secondary infection that led to the injuries. He stated that he knew the wounds were two weeks old because with time wounds tend to heal and that he based on the various grades of attempted healing and the history of the Complainant's assault. He defined grievous harm as harm which amounts to a main or dangerous harm that injures one's health. It results in to serious hurt/harm to the health of the sufferer and for the Complainant, they were grievous injuries at the back.

The Respondent did not call any evidence to rebut that of the Complainant nor did he file submissions in defence. The Respondent only cross examined the Complainant and all his witnesses.

From the evidence above, I find that there is evidence to support the Complainant's assertion that he was severely beaten by prison warders of Kyamulibwa prison on allegations that he had attempted to escape.

I find that the Complainant was beaten for attempting to escape although the Complainant denied the same; stating that he was being coerced to dig. The beatings which were inflicted on the Complainant amounted to torture within the definition quoted earlier. The description by the expert witness of multiple old bruises across the back of the Complainant was an indication of the pain and suffering the Complainant was subjected.

In the case of **Akisoy vs Turkey** (1995) 21 EA 573, the court gave judgment in which it held that where an individual is taken into police custody in good health but is found to be injured on release, it is incumbent on the authority to provide plausible explanation as to the cause of the injury.

In the instant case, the Respondent has not provided the required explanation regarding Alex Twinomugisha's injuries while he was in Kyamulibwa prison. I therefore find the Respondent vicariously liable for the acts of his agents.

**Issue two: Whether the Complainant is entitled to compensation.**

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In respect to this issue, the Complainant has proved to the satisfaction of the tribunal that his right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents. Alex Twinomugisha is therefore entitled to a remedy in form of compensation by the Respondent. This is in line with Article 53(2) (b) $\&$ (c) of the Constitution, which provides that

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

- a) the release of a detained or restricted person; - b) payment of compensation; or - c) any other legal remedy or redress."

In order to determine the suitable quantum of compensation to be awarded for the violations, I will take into consideration previous awards in similar cases. I will further consider the fact that right to protection from torture, cruel, inhuman and degrading treatment as an absolute right under Article 44(a) of the Constitution of the Republic of Uganda 1995.

In the case of Rwinkesha W. K Vs Attorney General. UHRC/FP/050/2003. The Complainant sustained grievous injuries that included a broken rib and broken skull in addition a multiple of other injuries. The Presiding commissioner awarded the Complainant U. Shs10,000,000= (Uganda Shillings Ten Million) for the violation of his right to freedom from torture, cruel, inhuman or degrading treatment or punishment.

In the instant case the expert witness stated that the Complainant Alex Twinomugisha, sustained grievous injuries on the back which would affect his health. The injury in the instant case is less severe than that of Rwinkesha, Twinomugisha did not sustain any fractures. I therefore find Ug. Shs, 5,000,000= (Five million Uganda Shillings) as adequate compensation for the violation of Complainant's right to freedom from torture, cruel, inhuman or degrading treatment or punishment. I so award.

# **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (Respondent) is ordered to pay to the Complainant, Alex Twinomugisha a sum of U. Shs. 5,000,000= (Five million Uganda shillings only), as general damages for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 3. Interest at the rate of 10% per annum to be paid on the total sum of U. Shs. 5,000,000 (Five million Uganda shillings only) calculated from the date of this decision until payment in full. - 4. Each Party to bear their own costs.

Either Party may appeal to the High Court of Uganda within 30 days from the date of this decision if not satisfied with the decision of this Tribunal.

$16$ tu DAY OF $\mathcal{N}$ $\mathcal{N}$ $\mathcal{N}$ 2017. DATED AT KAMPALA ON THIS.

JOSEPH A. A. ETIMA

# PRESIDING COMMISSIONER