[2023] UGHRC 1


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) **TRIBUNAL**

#### **HOLDEN AT KAMPALA**

#### COMPLAINT NO. UHRC/055/2011

**COMPLAINANT ARODU HERBERT ::::::::::::::::::::::::**

#### **AND**

RESPONDENT **ATTORNEY GENERAL ....................................**

CORAM:

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- 1. HON. MARIAM WANGADYA - 2. HON. COL (RTD) STEPHEN BASALIZAEC - 3. HON. OMARA APITTA LAMEX - 4. HON. SHIFRAH LUKWAGO

### **DECISION**

The Complainant alleges that he was arrested on 8^th March, 2010 and detained at Kira Road Police Station on the allegation of theft of office equipment. On 11^th March, 2010 he was taken to Rapid Response Unit (RRU) base at Kireka where he was handcuffed, tied on a metallic pole while squatting, blindfolded, beaten all over his body, slapped on the head


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and also hit on the knee joints, elbows and legs with pieces of timber by RRU operatives. He was also kicked on the chest and boxed on the stomach by the same operatives, after which he was detained in a cell. That even while in detention, he was on one occasion repeatedly beaten by the operatives including one Rukundo while lying on a metallic pole. That the same operatives also threatened to kill him if he refused to show them the whereabouts of the stolen items. He was beaten until he lost consciousness which he later regained while at Mulago Regional Referral Hospital. That after receiving treatment, he was taken back to RRU and detained until 31^st March, 2010 when he was taken back to Kira Road Police Station again before he was finally produced before court on 1^st April, 2010 and eventually released on bail.

It was the Complainant's contention that his detention beyond 48 hours and beating amounted to violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment and personal liberty by State agents.

The Respondent through his representative Ms. Akello Susan Apitta denied the allegations.

At the hearing, the following issues were framed for determination:-

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- Whether the Complainant's right to freedom from torture or cruel, 1. inhuman or degrading treatment or punishment was violated. - Whether the Complainant's right to personal liberty was violated. $2.$ - What remedies are available? $\overline{3}$

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Evidence in this complaint was heard by former Commissioner Dr. Katebalirwe Amooti Wa Irumba (RIP). It is therefore from his record of proceedings that we arrive at this decision. The Respondent's Counsel never called any defence witnesses nor filed written submissions to rebut the Complainant's allegations. However under Sections 101, 102 and 103 of the Evidence Act Cap 6, the Complainant bears the burden to prove the allegations against the Respondent on a balance of probabilities.

# 1. Whether the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated

Torture is defined under Article 1 of the United Nations Convention Against Torture and Other cruel, inhuman or degrading treatment or punishment 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 right to freedom from torture, inhuman, cruel and degrading treatment is provided for under article 24 of the Constitution of the Republic of Uganda. Article 44(a) of the Constitution provides that the right to freedom from torture is a non-derogable right.

It is the Complainant's testimony that he was detained on $8^{th}$ March 2010 at Kira Road Police Station on allegations of office breaking and theft of property of Supreme Security. He stated that he was detained until 11^th March 2010 after which he was transferred to RRU Kireka where he was subjected to beatings on the arms, knees and elbows using sticks and kicks while asking him to produce the stolen property.

He specifically stated that:

"When we reached Kireka RRU I was taken behind a certain building and handcuffed to a metallic pole. Four (4) RRU operatives started beating me on the arms, knees and elbows using big sticks and kicks while asking him to produce the stolen property. I told the officers that I had no idea of what happened to the property and they told me they were going to kill

me. At this moment I was blindfolded and my mouth covered to prevent me from screaming. I was detained in the cell for about six days and after that, a one Rukundo, a Police officer picked me from the cell and threatened to kill me. Rukundo started beating me seriously all over the body in the same places which had earlier been beaten. He would beat me and after he would sit down, smoke his cigarette and thereafter tell me that he was going to kill me on that day. He beat me until I became unconscious. I regained my consciousness when at Mulago Regional Referral Hospital in the casualty ward on drip."

The Complainant further testified that as a result of the beating, both his legs got swollen and he could not walk. In addition his arms were injured by handcuffs and at the time he still felt pain in the chest and back. He also stated that he was having severe headaches. That while he was being beaten, a one Oseku Simon and Mukaya Ojambo were present.

The Complainant's testimony concerning the injuries he suffered was corroborated by the testimony of CW2, an expert witness from African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) who interpreted the medical report from ACTV. She stated that the Complainant had pain in the knee joints of both legs, ankle joints, elbow joints and the chest. He was unable to stand and walk unsupported due to the pain in the ankle and knee joints. He was also psychologically

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depressed and tearful. The diagnosis made was arthritis (infection in the joints), soft tissue injury and post-traumatic disorder. The post-traumatic disorder was seen from being tearful and the injuries caused permanent disability at 12%.

CW3 Oseku Simon stated that he was in the same cell as the Complainant at Kireka RRU. He stated that the cell he was detained in had a metallic door, part of which had iron bars through which he could easily see outside the cell through the spaces between the bars. He saw Arodu being beaten on the knee and ankle joints from the verandah while handcuffed on the evening of the day when they were taken to Kireka RRU.

CW4, Ejolu Sam, a brother to the Complainant also corroborated the nature of the injuries suffered by the Complainant when he stated that; "When Arodu came to meet me, he was not walking normally. His legs were swollen around the ankles and under the foot. He complained of chest pain and was taken back to the cells. The following day I went back to visit him and found that he was not in a good condition. His legs were swollen; he had bruises around the ankles. He was unable to walk unsupported because fellow inmates supported him while moving out of the cell. I noticed bruises around his arms, wrists, knees and legs."

$\pi^{-j(\overline{z}-\kappa)}$ He further stated that the Complainant's recovery process was a long process.

The Complainant's evidence was not disputed by the Respondent as he did not adduce any evidence or file written submissions to rebut the Complainant's evidence. The Complainant's evidence therefore stands. See George Asiimwe v Attorney General HCCS No. 481/1997.

It is therefore the finding of this tribunal that the injuries inflicted on the Complainant by operatives of Kireka RRU were severe, resulting in physical and emotional trauma assessed by the medical expert at 12% permanent disability. We therefore resolve this issue in the affirmative.

Whether the Complainant's right to personal liberty was violated $2.$ Article 23 (4) (a) and (b) of the Constitution provide that a person arrested or detained for the purpose of bringing him or her before a court in execution of a court order or upon reasonable suspicion of his or her having committed or being about to commit a criminal 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 48 hours from the time of arrest.

The Complainant, Arodu Herbert, testified that he was detained for 3 days at Kira Road Police Station from 8^th March 2010 to 11^th March 2010 and then detained at Kireka RRU from 11^th March to 30^th March 2010. His testimony was corroborated by CW3 and 4. CW4 Ejolu Sam a brother to the Complainant stated during cross-examination that the Complainant was detained at RRU from 11^th to 31^st March 2010. CW3 indicated that they were taken from Kira Road Police Station and detained at Kireka RRU until 31^st March 2010.

The Complainant has demonstrated in his evidence that he was detained for 25 days before being taken to court. This means that he was illegally detained for 23 days outside of the 48hour rule.

The Tribunal therefore finds that the Complainant's right to personal liberty was violated by State agents and the Respondent is vicariously liable.

## 3. What remedies are available

Article $53(2)$ of the Constitution states that the Commission if satisfied that there has been an infringement of a human right may order payment of compensation or any other legal remedy or redress. We therefore order as follows;

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## Freedom from torture or cruel, inhuman or degrading $\overline{a}$ treatment or punishment

Based on the extent of injuries suffered by the Complainant arising from beatings on his ankles, elbows and legs to the extent that he could not walk properly, and the opinion of the expert witness that the Complainant suffered 12% permanent disability, we award the Complainant UGX $8,000,000/$ = (Uganda Shillings Eight Million only) as compensation for the violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment.

## **Personal Liberty** $\mathbf{b}$ )

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The Complainant was illegally detained for 23 days. The tribunal however notes that his arrest was not arbitrary as he was later taken to court and charged with office breaking and theft.

Taking into account all the circumstances of this complaint we consider a sum of UGX 1,000,000/= (Uganda Shillings One Million only) as adequate compensation for the violation of the Complainant's right to personal liberty.

## **ORDERS**

- $1.$ The complaint is allowed. - The Respondent is ordered to pay to the Complainant, Arodu $2.$ Herbert a total sum of $UGX$ 9, 000,000/= (Uganda Shillings Nine **Million Shillings only)** broken down as follows: - UGX. 8,000,000/= (Uganda Shillings Eight Million only) as $a)$ compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - UGX. 1,000,000/= (Uganda Shillings One Million only) as $\mathbf{b}$ compensation for the violation of his right to personal liberty. - $3.$ The total sum of UGX 9,000,000= (Uganda Shillings Nine **Million)** shall carry interest at court rate from the date of this decision until payment in full. - Each party shall bear their own costs. $4.$ - This decision overrides any orders earlier issued by this tribunal. $5.$

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Either party not satisfied with this decision has the right to appeal to the High Court of Uganda within 30 days from the date hereof.

Dated at KAMPALA this ....................................

Uton HON. MARIAM WANGADYA

**CHAIRPERSON**

HON. COL (RTD) STEPHEN BASALIZA **MEMBER**

HON. OMARA APITTA LAMEX

**MEMBER**

HON. SHIFRAH LUKWAGO **MEMBER**

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