[2017] UGHRC 25


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION AT MOROTO COMPLAINT UHRC NO/MRT/41/2009

ALICE NAPILA::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

-AND-

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::: RESPONDENT

## **DECISION**

The complainant brought this complaint against the respondent seeking compensation for alleged violation of her rights to freedom from torture, cruel, inhuman and degrading treatment, personal liberty and deprivation of property. She told the tribunal that in June 2007, UPDF Soldiers went to their village for a cordon and search operation for guns. That the soldiers asked her about the whereabouts of her husband and when she informed them that he was not in the village at that time, they arrested her with her four months old baby beat her and detained her for two weeks in their barracks. She further stated that during arrest, the soldiers took some of her property.

She contended that the actions allegedly committed against her by the said officers amounted to violation of her rights to protection from torture, cruel, inhuman and degrading treatment, Personal Liberty &Property. She holds the respondent vicariously liable.

The respondent through his representative, Mr. Eric Lumbe denied the complainant's accusations.

## ISSUES

- I) Whether the respondent's agents/servants violated the complainant's right to protection from torture, cruel, inhuman and degrading treatment or punishment. - II) Whether the Complainant's right to personal liberty was violated by the respondent.

- Ill) Whether the Complainant's right to ownership of property was violated - IV) Whether the respondent (Attorney General) is liable for the violations against the complainant's rights. - V) Whether the complainant is entitled to compensation.

Before I resolve the above issues I wish to state from the record that the respondent did not call witnesses but opted to file written submissions in defence of the matter. But I note that the complainant retained the duty to prove her case against the respondent to the satisfaction of the tribunal.

Under S.101 (1) of the Evidence Act Cap 6;

"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 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 respondent's agents/servants violated the complainant's right to protection from torture, inhuman and degrading treatment or punishment;

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 United Nations Convention Against Torture (UN CAT) and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 defines "torture" 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 discretion 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, cruel, inhuman and 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 (a) of the constitution are non derogable which include freedom from torture, cruel, inhuman and degrading treatment or punishment.

Torture is further out lawed by several international human rights instruments to which Uganda is signatory. (See Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR), and Article 7 of the International Convenant on Civil and Political Rights (ICCPR).

The actions committed against the complainant would constitute "torture" if the same were proved.

Alice Napila (CW1) testified that on a date and year she could not recall, at 10:00pm, soldiers went to her village searching for guns. That when it reached 3:00am, they sent all of the residents from their houses and started to look for the guns. That the soldiers asked her about the whereabouts of her husband who was the LC1 Chairperson and she told them that he had gone to look after his sick auntie. That instead the soldiers just arrested her and some other villagers and took them to the Barracks. That she was arrested with her two children aged 4years and 4 months.

She added as follows;

"While in the barracks, I was put in my own cell with my two children. At 9:00pm, two male soldiers started beating me using sticks, kicking and boxing me. Blood started oozing out of my ear. They beat me for about an hour. In the morning, my father came to visit me and requested for my release but he was told that unless her husband is taken there, they would not release me. It's only my four year old daughter who was taken back home because she was sick".

She further stated that throughout her stay in the barracks, her husband never showed up because the soldiers wanted a gun or 370,000/= (Three Hundred and Seventy thousand shillings) but he said that he had no money nor a gun. That she was beaten so hard using sticks all over the body. That she was released after her husband brought the money and then took her to Kapedo Mission Health Unit for treatment.

During cross examination by counsel for the respondent, the complainant stated that the soldiers recovered 4 guns from her husband. That she did not know who had reported that her husband had guns. She further stated that she was beaten the day she was arrested.

Upon re-examination by Commission Counsel, she stated that when the husband sent information that there was no money and no gun, she was beaten badly and this was the second time. That the first time she was beaten was when she was arrested.

The Complainant's testimony was corroborated by the evidence of CW2, Napeyok Juliana, who testified that in June 2007 at 10:00pm, soldiers went to their village and surrounded the village. That at 3:00am, they told everyone to get out of their houses and they sat under the trees until 7am. That the soldiers asked the complainant where her husband was and she told them that he had gone to attend to his sick auntie. That they instead arrested her with her two children and took them to the Barracks.

She further states that in the morning, she took for the complainant food in the Barracks but her ear was bleeding and one soldier told her to tell Napila's husband to bring shs. 370,000/= for her release.

During cross examination by counsel for the respondent, the witness stated that the complainant was taken away by soldiers to a place called Kapero and she was there when they were taking her. That the complainant was taken instead of her husband and they were looking for guns during the disarmament period. That she saw the complainant the following day when she had been badly beaten.

CW3, Nyangamot Nicholas testified that it was in June 2007 at around 11:00pm when army soldiers went to their village and surrounded it. That they were ordered to gather in one place until 7am. That he was arrested together with Napila and she was beaten using sticks while asking her about where the husband was. That the beating took like an hour but he was later released and left the complainant there.

During cross examination by counsel for the respondent, the witness stated that they arrested the complainant because they had realized that the husband had run away. He further stated that he witnessed Napila being beaten at the Barracks.

In his submissions, counsel for the respondent stated that the soldiers never had a grudge with the complainant and so they could not have beaten her at all. That the complainant stated that she had been boxed, beaten and sustained injuries on her back and chest but did not adduce any evidence to prove that she had been beaten.

He further stated that CW2 stated that she went in the morning to see the complainant but she was bleeding, it's her submission that this witness does not know what happened to the complainant and the cause of the bleeding.

He further submitted that CW3 stated that the soldiers beat the complainant during arrest yet the complainant had stated that the beating took place in the night. That this was therefore a contradiction and cited the cases of Alfred Tajor vs. Uganda EACA Cr. App. No. 167/1969 (unreported) and Bumbakali Lutwama &Ors Vs Uganda Cr. No. 38/89 (unreported). She stated that the substance of these decisions is that in assessing the evidence of the witness, consistency or inconsistency, unless satisfactorily explained will usually , but not necessarily result in the evidence of a witness being rejected, minor inconsistencies will not usually have the same effect unless the trial judge thinks that they point to deliberate untruthfulness, moreover, it is open to a trial judge to find that that particular witness has been substantially truthful, even though they lied in some particular aspect.

He concluded that the inconsistencies and discrepancies were so grave to the extent of adversely affecting the veracity of the complainant's witnesses concerned as they were not satisfactorily explained. That the complainant failed to prove her case in accordance to the law and so her right to freedom from torture, cruel, inhuman or degrading treatment or punishment was not violated.

Having heard both sides, I note that the complainant did not produce medical documents to show that she had sought treatment from the health facility she alleged to have got treatment from.

However, I further state that eye witnesses can also prove torture. In yet other but rare situations, circumstantial evidence can also prove torture. I will rely on the case of Fred Kainamura vs. Attorney General & Ors 1994 KALR where it was held by Okello J that it is not a requirement of law that every allegation of assault must be proved by medical evidence.

CW2 stated that she went to the Barracks the following day and found the complainant bleeding. Although counsel for the respondent in his submissions stated that this witness did not know how the complainant sustained the injuries which led to her bleeding. I however note that the respondent did not at any one time give an explanation as to how the complainant sustained the bleeding. This is a person who was in their custody so they owed the tribunal an explanation as to how the complainant started bleeding while in their care.

Reference is made to the case of Russell Vs Home Office. Daily Telegraph 13th March 2001 (also cited in Clayton On Human Rights), it was held that if a man enters custody un injured and it is later found while in custody to have injuries for which no plausible explanation is provided by those responsible for his custody, the court in appropriate circumstances would be likely to draw inference that his custodians must have caused his injuries. As such, the state must be held liable.

In the instant case, the respondent's agents did not give a plausible explanation as to how the complainant sustained the injuries while under their care.

On the issue of the contradictions made by CW3 regarding the time of the beating as stated in the above submissions by respondent's counsel, I note that these contradictions are not grave in nature to warrant deliberate untruthfulness on the part of the witness.

The evidence of the complainant and that of the eye witnesses is enough to prove that Napila Alice was tortured by the soldiers. The allegation of torture and inhuman treatment of the complainant by the respondent's agents has been proved. Pain and suffering from the beatings and kicks for purposes of coercing the complainant to tell them the whereabouts of the husband have also been proved.

WHEREFORE, I find on the balance of probabilities that the respondent's agents violated the complainant's right to protection from torture, cruel, inhuman and degrading treatment or punishment and the claim by the complainant of torture in the instant complaint is upheld.

## 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. It is not an absolute right since it can be derogated from when any of the circumstances listed in Article 23(1) of the constitution exist, for example where there is reasonable suspicion that a person has committed or is about to commit a criminal offence. The law prohibits arbitrary arrests and detention as the same constitution sets out procedural guarantees to prevent the abuse of persons under arrest and detention. Thus, Article 23(4) (b) requires that anyone arrested upon reasonable suspicion that a person has committed or is about to commit a criminal offence must if not earlier released be produced in court within 48 hours.

The complainant alleges that she was arrested by soldiers on a date and year she could not recall and she was in detention for 2 weeks. CW2 states that the complainant was arrested in June 2007 on a date she could not recall and she spent one week in detention when her husband took 370,000/= when she was released.

CW3 stated that they were arrested with the complainant in June 2007 on a date he could not recall. That he was released immediately and the complainant stayed in detention for a period of 4 days. However, when CW3 was cross examined, he stated that he could not recall the year the complainant was arrested and he also stated that she was in detention for 1 week. This was inconsistent to what he stated earlier on that the complainant was in detention for 4 days.

As noted earlier, the respondent did not call defence witnesses but opted to file written submissions in defence of the matter.

In his submissions, Counsel for the respondent stated that the complainant was arrested because she was concealing the whereabouts of the husband. That she knew where the husband was hiding and the reasons as to why he was hiding. He therefore justified the arrest under Art 43 of the 1995 constitution of the Republic of Uganda, gives general limitations to the enjoyment of human rights.

Basing on the above, I note that the complainant does not know the date when she was arrested by the said soldiers nor her witnesses though she states that she was there for 2 weeks. CW2 states that the complainant was arrested in June 2007 on a date she could not recall and she spent one week in detention while CW3 stated that they were arrested with the complainant in June 2007 on a date he could not recall and the complainant was detained for 4 days. However, during cross examination, CW3 stated that he could not recall the year when the incident happened but the complainant was in detention for 1 week.

There is no lockup register to show the period the complainant was allegedly in detention yet her evidence and that of the witnesses is contradictory in nature.

However, I note that the reasons of arrest by the soldiers were not justified nor existent in nature. This is a person who was arrested on grounds of not telling the soldiers where her husband was yet she told them that her husband had gone to look after his sick auntie. The fact that the soldiers wanted the complainant's husband since he was in possession of a gun did not in any way connect with arresting the wife to the suspect.

This arrest was therefore unjustified and arbitrary in nature and to worsen the situation she was detained with her two children.

In the instant case therefore, the complainant's arrest was not justified and unlawful since it was arbitrary in nature.

Therefore, I find on a balance of probabilities that the Complainant's right to personal liberty was violated by the Respondent's agents..

## (iii) Whether the Complainant's right to property was violated.

The right to property is protected under Article 26 of the Constitution of the Republic of Uganda and Article 17 of the Universal Declaration of Human Rights 1949.

Article 17 (1) of the UDHR provides that everyone has a right to own property alone as well as in association with others. It further provides that no one shall be arbitrarily deprived of his property. Article 26 of the Constitution of the Republic of Uganda is in pari-materia with Article 17 of the UDHR except that the Constitution goes ahead to provide for exceptions and the procedures under which property can be lawfully taken away.

Specifically Article 26(2) is to the effect that no person shall be compulsorily deprived of property except if it is necessary for public use or in the interest of defence, public safety or public health, to mention but a few, and the compulsory taking of possession or acquisition is made under a law which provides for prompt payment of fair and adequate compensation prior to taking of possession or acquisition of property, and a right of access to a court of law by any person who has interest or a right over property. If property is taken away in disregard of the procedures provided for by this Article, property is said to be unlawfully acquired or possessed thereby violating the right to property by the owner.

The Complainant alleged that the soldiers went to her home after her release and removed property. That they took 8 bed sheets, one mattress, 4 chicken, one jerrican of water, 4 cups and cash of Ugx 175,000/=.(One hundred and Seventy Five thousand shillings)

In his submissions, counsel for the respondent stated that there is no way the soldiers could take the complainant's property since they never had a grudge with her but instead her husband who was reported to be having a gun.

He further stated that none of the witnesses testified on taking away of her property by the respondent's agents. That CW1 and CW3 testified to taking 370,000/= to the soldiers for the complainant to be released but however, CW3 just heard about the money and did not know whether the said money was indeed given to the soldiers.

I concur with Counsel for the respondent on this issue because it was only the complainant's word about the loss of property. Wiry didn't any of the witnesses who even claimed to be her neighbors say anything about her property?

In the case of Dr. James William Rwanyarare Vs Patrick Muhumuza & ORS UHRC Complaint No.304/1999, it was observed that in order to prove that the right to property was violated the complainant has to prove ownership of property at the material time and he was lawfully deprived of the same.

The complainant has failed to prove ownership of property in the instant case.

There is therefore no evidence to show that the soldiers took the complainant's property as alleged. Hence issue three is also resolved in the Negative.

## iv) Whether the respondent (Attorney General) is liable for the violations against the complainant's rights

As resolved in the above issues, there was a violation of the complainant's right freedom from torture, cruel, inhuman or degrading treatment or punishment and personal liberty contrary to Articles 24 and 23 respectively of the 1995 constitution of Uganda.

According to Article 119(4) (c) of the Constitution and section 10 of the Government proceedings Act, the role of the Attorney General is to represent Government in any civil proceedings to which Government is party and this is what is called Vicarious Liability.

The vicarious liability of Government for acts of UPDF officers is derived from the functions of the Government of Uganda which include being responsible for defence, security, maintenance of law and order, as recognized under Article 189 and item 2 in the 6th schedule to the constitution of Uganda 1995 as amended, is the furthest end of

the criminal justice system in Uganda under the auspices of Government's duty of keeping law and order.

In relation to the law on vicarious liability it is clear that, it is however immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable as stated in Muwonge Vs A. G (1967) EA 17. It is thus irrelevant whether the acts done by the UPDF soldiers were unjustified or unauthorized as long as they did such acts 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 case the soldiers arrested Napila Alice (complainant) and beat her after effecting an arrest. These officers both individually and severally worked on behalf of the state which is their master hence it was proper for Attorney General to represent Government in this matter for the officers who beat the complainant after arrest.

Therefore the Attorney General in this matter is vicariously liable for the violation of the complainant's rights to freedom from torture or cruel, inhuman or degrading treatment or punishment and personal liberty.

## v) Whether the complainant is entitled to compensation:

Having held that the respondent's servants/agents violated the complainant's right to protection from torture, cruel, inhuman and degrading treatment or punishment, it follows that she is entitled to compensation by the respondent.

Under Article 50 (1) of the constitution of the republic of Uganda 1995,

"Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

Further under Article 53(2) of the Constitution:

"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."

The actions of officers against Alice Napila were cruel, oppressive, criminal and completely unprovoked and impossible to justify since she was not the one they were looking for but instead her husband. As stated earlier, the arrest of the complainant by the soldiers was unjustified and arbitrary in nature.

First, I will consider the 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.

In the instant case the complainant prayed to this tribunal to order compensation to her in monetary terms for the money spent on treatment and the unlawful arrest. In my opinion the complainant is entitled to compensation for her rights that were violated. To determine the amount of money paid to her it will be based on the injuries she sustained and the severity of the pain and suffering she has experienced as a result of torture.

In Christopher Ssajabi Nsereko Vs Attorney General UHRC No.11^99 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.

Furthermore, taking into account 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".

In respect to this issue, the Complainant has proved on balance of probabilities to the satisfaction of the Tribunal that her right of freedom from cruel and inhuman treatment or punishment was violated by the Respondent's agents. She is therefore entitled to compensation by way of damages from the Respondent.

In assessing damages in this matter I take note that the Complainant was beaten and kicked on her chest yet she had her 4 months old child in detention with her. I also consider the fact that the respondent's agents never gave a plausible explanation as to how those injuries were sustained. Accordingly; I find a sum of UGX 5,000,000= as adequate compensation in the circumstances.

On the issue of personal liberty, I consider the fact that this was a woman who was arrested innocently just because the soldiers never found there her husband. This arrest was unlawful and arbitrary since there was no suspicion of any crime done by the complainant. It's the husband who was in possession of the gun they were looking for.

Basing on the circumstances under which the complainant was arrested, especially the fact that the arrest and detention was unlawful, I will consider a sum of UGX 2,000,000/= as adequate compensation in the circumstances

## ORDER

- 1. The complaint is allowed in part. - 2. The Attorney General (the Respondent) is ordered to pay to the Complainant Napila Alice, a total sum of U. Shs 5,000,000/ only (Five million Uganda Shillings) as general damages for the violation of her right to freedom from cruel, inhuman or degrading treatment or punishment by State agents. - 3. The Attorney General (the Respondent) is ordered to pay to the Complainant Napila Alice, a total sum of U. Shs 2,000,000/ only (Two million Uganda Shillings) as general damages for the violation of her right to Personal Liberty. - 4. The said amount of U. Shs 7,000,000/ only (Seven million Uganda Shillings) will carry interest at 10% per annum from the date of this decision until payment in full - 5. Each party shall bear their own costs. - 6. 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 MOROTO on this....^ day of ²⁰¹⁷

**MEDDI B. MULUMBA PRESIDING COMMISSIONER**