[2022] UGHRC 6


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **HOLDEN AT HOIMA COMPLAINT NO UHRC/HMA/02/2014**

KASANGAKI PATRICK:::::::::::::::::::::::::::::::::::: $-\mathbf{AND} -$

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

### **BEFORE: HON. COMMISSIONER SHIFRAH LUKWAGO**

#### **DECISION**

The Complainant, Kasangaki Patrick alleges that at around 11:00 pm on 6^th January 2014 while he was at home sleeping, three Policemen attached to Kigorobya Police Post forcefully dragged him out of his house. That upon dragging him out of his house, the Policemen punched him and started beating him all over his body with sticks while others kicked him all over his body. That despite his pleas to the Policemen, the beatings continued. That he was taken to Kigorobya Police Post where he was detained for a night without his statement being recorded. That as a result of the beatings he sustained injuries on his body. He claimed a violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

The following issues were framed for determination:-

- l. Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated? - II. Whether the Respondent is vicariously liable for its agents' actions? - III. Whether the complainant is entitled to any remedy?

First and foremost before I resolve the issues above, it is pertinent for me to note that this matter was heard by Hon. Commissioners Stephen Basaliza and Meddie Mulumba as they then was. The decision is therefore based on the record of proceedings prepared by them.

Secondly, in this matter the respondent never called any witnesses in defence of the matter nor did he file written submissions despite several adjournments to do the same. The complainant and his witnesses testified and were cross examined by respondent's counsel. However, this did not do away with the complainant's responsibility to prove his case before the Tribunal on the balance of probabilities.

Under S.101(1) of the Evidence Act Cap 6, it is stated 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 those facts exist."

Under S.102 of the Evidence Act, it is stated 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."

I now turn to the issues:

The Complainant led evidence of three witnesses CW 1 Sunday Johnson, CW 2 Tumusiime Richard and Mukama Amos – CW 3.

## **ISSUE I: Whether the Complainant's right to freedom from torture, cruel,** inhuman or degrading treatment or punishment was violated?

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) gives an internationally agreed legal definition of torture by stating 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".

Considering National Instruments, the Prevention and Prohibition of Torture Act, 2012 under section 3 defines 'torture' as;

"any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as obtaining information or a confession from the person or any other person, punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit;

or intimidating or coercing the person or any other person to do, or to refrain from doing, any act".

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

The International Covenant on Civil and Political Rights (ICCPR) 1996, which prohibits torture or cruel, inhuman and degrading treatment or punishment under Article 7, which states; "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The United Nations' Universal Declaration of Human Rights (UDHR) has evolved into treaty obligations through the International Covenant on Civil and Political Rights of 1966 (ICCPR)."Article 7 of the ICCPR re-echoes clearly Article 3 of the UDHR, and includes another prohibition deriving from the trial of the Nazi doctors at Nuremberg". Article 7 of the Covenant provides that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. The Covenant states that while some rights may be the subject of derogation during a "time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed," the provisions of Article 7 prohibiting torture and ill-treatment are not subject to derogation." In addition to Article 7's prohibition against torture and ill treatment, Article 10 of the Covenant requires that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

Similarly, the Universal Declaration of Human Rights (UDHR) 1948 states under Article 5 that; "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The law prohibiting torture is further domesticated under the Prevention and Prohibition of Torture Act, 2012. (PPTA)

The actions committed against the complainant would constitute "torture" if the same were proved taking into account the definition of torture as provided under Article 1 of the CAT and Section 2 of the PPTA, 2012.

The Convention Against Torture imposes certain obligations to prevent and enforce the prohibition against torture and cruel, inhuman, or degrading treatment. The Convention Against Torture provides that the prohibition against torture is a non derogable obligation, and no order from a superior officer or a public authority may be invoked as a justification of torture." Article 1 of the Convention Against Torture is widely referenced by international bodies and has been deemed the de facto "first port of call" for those seeking a definition of torture."

The Uganda Human Rights Commission Tribunal has subsequently adopted an evolving standard for determining when acts constitute torture, a standard that takes into account present-day conditions and human rights norms. This Tribunal emphasizes that the prohibition against torture enshrines one of the most fundamental values of democratic societies that must be respected even in the most difficult circumstances, the Tribunal was established to protect human rights and fundamental liberties, which "correspondingly and inevitably requires greater firmness in addressing breaches of the fundamental values of democratic societies." I observe that the 1995 Constitution of the republic of Uganda is a "living document," and I would like to express that "certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in the future." In making a determination regarding whether torture or cruel, inhuman, or degrading treatment has occurred, the Tribunal has considered;

a) The nature of the act or acts involved;

b) The severity of the physical and/or mental harm suffered as a result of the acts:

c) The purpose of the actor, evidence on the purpose and Intent of torture.

d) The official status and/or individual responsibility of the actor.

International human rights scholars have also analyzed these elements and have offered commentary on how they should be applied to distinguish torture and inhuman or degrading conduct. These four elements, and the jurisprudence that has interpreted them, are discussed more below in the evaluation of evidence.

I shall evaluate the evidence adduced in order to determine whether the allegations by the complainant amounted to the level of severity that constitutes what would be categorized as torture or whether the effects of the same actions amount to what is categorized as cruel, inhuman or degrading treatment or punishment.

Once the above elements are proved against the Respondent's agents, then it can be established that the Complainant was indeed subjected to torture contrary to the laws of Uganda.

In Fred Tumuramye -and- Attorney General UHRC NO. 264 of 1999, Commissioner Aliro Omara outlined the central contours of torture as stated in the CAT to bear the following: "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.

#### **Evidence**

The Complainant's (C) testimony is that at around midday on a day he could not recall but in January 2014, while he was at his home sleeping, he heard some people banging on his door. The said persons broke the door and entered his house. That he later recognized the men as Policemen attached to Kigorobya Police post since they were dressed in Police uniform. He was dragged out of his house while being beaten with sticks all over his body especially on the right hand and chest by the Policemen. As a result of the beatings inflicted on him, his right hand and right knee became dislocated. The Policemen took him to Kigorobya Police post aboard a pickup which belonged to Kigorobya Town Council. At Kigorobya Police Post he was informed that he had been arrested on allegations of poisoning a neighbor's child. He sought for medical treatment at Hoima Police Station Health Centre II where he was advised to report the matter to the Uganda Human Rights Commission (UHRC) before being referred to Hoima Regional Referral Hospital for x-ray. He still feels pain in the chest and back.

In cross examination he stated that both hands were injured but he could not tell which hand was x-rayed.

CW 1 Sunday Johnson testified that at around midnight on a date he could not recall but in January 2014 while he was going home he heard someone wailing. He went towards the home of the Complainant and found four uniformed Policemen beating the Complainant with sticks and also kicking him. The Policemen lifted the Complainant and put him onto a pickup which belonged to Kigorobya Town Council. Upon asking the Policemen why they were beating the Complainant, they told him that it was none of his business. He was able to identify them as Policemen because there was a moonlight. The following day, he heard rumors that the complainant had been arrested and released. In cross examination he states that he saw the Complainant after a long time with broken teeth but could not tell whether he had other injuries.

CW 2 Tumusiime Richard, testified that the complainant is his neighbor. At around midnight on a day and month he could not recall but in 2015 while he was home sleeping, he heard the complainant making an alarm. He opened his window and upon glancing outside he saw 6 Policemen beating the complainant with sticks all over his body. He later opened his door. The complainant was beaten for almost one hour. The complainant was pushed into a vehicle and taken away. He was able to see the Policemen because there was moonlight.

CW 3 Mukama Amos, the In-charge Hoima Police Clinic interpreted Exhibit I which is a medical treatment note authored by AIP Agonbua Dorcus. The Complainant was examined at Hoima Police Health Centre II on 24^th January 2014. He presented a history of having been assaulted with a swelling on the left forearm after being hit with a stick. A general examination showed the he was in pain. A blunt object could have been used to inflict the injuries. An x-ray on the left forearm showed a fracture on the head of the left radius. The injuries were classified as grievous harm.

The Constitution of the Republic of Uganda, 1995 under Article 24 guarantees freedom from torture or cruel, inhuman and degrading treatment or punishment. Article 44 (a) of the Constitution and also under Section 3 of the Prevention and Prohibition of Torture Act of 2012 state that this right is non-derogable. Torture is extreme physical pain caused by someone or something, especially as a punishment or as a way to make someone say something. There are three essential elements:

$\dot{1}$ . The intentional infliction of severe mental or physical pain or suffering;

- The purpose of the action or treatment meted out was to obtain ii. information or a confession, or for punishment, intimidation, coercion, or for any reason based on discriminating the victim; - By or with the consent or acquiescence of the state authorities; iii.

The Complainant bears the burden to prove the allegations against the Respondent as per Sections 101 (1), 102 Evidence Act Cap 6 [see; Kailash Mine

## Limited vs B4S Highstone Limited HCCS No.139 of 2012].

#### (b) Evidence on the Nature of the Act

The UN Special Rapporteur's 1986 report describes the conditions under which torture often occurs, including practices such as incommunicado detention and states of emergency, where "preventative detention" or detention without procedural safeguards to protect the rights of detainees has led to circumstances where torture can become psychologically and institutionally accepted." The Special Rapporteur's report includes a listing of the types of actions that constitute torture. Some of the acts on the list are acts of commission, such as beating, burning, suspension, suffocation, such as by near-drowning in water, and exposure to excessive light or noise. There are also acts of omission, such as prolonged denial of rest, sleep, food, sufficient hygiene, or medical assistance, and prolonged isolation and sensory deprivation. The African Commission on Human and Peoples' Rights and the United Nations Human Rights Committee have rendered decisions in similar cases involving findings of torture and/or inhuman, or degrading treatment or punishment. Case-by-case cruel. determinations have repeatedly emphasized the importance of considering the totality of the circumstances and the cumulative effects of treatment and/or conditions in reaching a conclusion regarding whether acts violate international law.

In this case the Complainant explains that he was dragged out of his house while being beaten with sticks all over his body especially on the right hand and chest by the Policemen. This in it's self is evidence of severe torture being inflicted onto the complainant. As a result of the beatings inflicted on him, his right hand and right knee became dislocated. That he was informed that he was arrested on allegations of poisoning a neighbour's child. This is evidence of purposeful intent on the side of the government agents who meted out the beating. The beating was intentional and calculated to cause pain to the complainant. I find that all the elements constituting an allegation of torture are proved in this case.

The Complainant enjoyed a right of freedom from torture. As seen from the evidence given by CW 1 and CW 2 before this Tribunal, it is clear that the complainant was a victim of torture at the hands of the Respondent's agents. The complainant testified that as a result of the beatings he sustained injuries on his body. The perpetrators acted contrary to Article 221 of the Constitution which demands that in the performance of their duties, security agents must respect human rights at all times.

From all indications, the respondent failed to uphold these standards and the Tribunal finds as a consequence that there was a violation of Article 24 of the Constitution.

On the balance of probabilities, It is established that the respondent's agents violated the complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. This issue is resolved in the affirmative.

# ISSUE II: Whether the Respondent is vicariously liable for its agents' actions?

Article 119 (4) of the Constitution of Uganda provides that "the functions of the Attorney General shall include to represent Government in courts or any other legal proceedings to which the Government is a party".

In the case of Iwina vs. Arua Town Council (1997) HCB 28, the court that decided the case held as follows: "Once it is proved that the servant was an employee of the master, there is a presumption that he was in the course of employment. The burden then lies on the master to prove the contrary. I shall also apply the principle of law that was upheld in the case of Muwonge vs. Attorney **General (1967) (EA) 17, in which the presiding judge the Hon. Justice Newbold** P. held that: "The law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are for which the master is to be held liable."

The Complainant implicated the Respondent's agents for having subjected him to acts of physical torture. He testified that the officers who arrested him were Policemen attached to Kigorobya Police post since they were dressed in Police uniform. Policemen are public servants and government employees who were acting in their capacities and no evidence was adduced by the Respondent to the contrary. Therefore this makes the Respondent vicariously liable for their actions done in the course of their employment [see Muwonge v Attorney General $(1967)$ EA 17.

#### **ISSUE III: Whether the complainant is entitled to any remedy?**

Having held that the respondent's servants/agents violated the complainant's right to freedom from torture or cruel, inhuman and degrading treatment or punishment, it follows that he 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) payment of compensation; or

(b) any other legal remedy or redress."

The acts of the soldiers were torturous, cruel and inhuman in nature intended to inflict pain and suffering on the complainant. The Tribunal notes that these were acts of sheer sadists carried out with malice and with disrespect of the human race.

To let such perpetrators go free after committing such acts would be a sign of encouraging the state agents to carry out barbaric acts against innocent people. These policemen had a duty of keeping law and order and so why then beat up a civilian they were meant to protect? The act by the respondent's agents was therefore unconstitutional.

In assessing compensation due to the Complainant, the Tribunal takes into consideration the nature of torture or maltreatment and injuries sustained and the impact on his life and the fact that this right is absolute. The Complainant testified that he still feels pain in the chest and back.

I accordingly award the Complainant a sum of $UGX$ 10,000,000/= (Uganda **Shillings ten million only)** as general damages for the violation of his right to freedom from torture.

#### **Decision of the Tribunal on the Merits**

- 1. Based on the above, the Tribunal: - 2. Finds that the Respondent has violated Articles $24$ , and $44(a)$ of the 1995 Constitution of the Republic of Uganda; - 3. Requests the Republic of Uganda to:

- $\mathbf{I}$ . Pay adequate compensation to the complainant named in the present Complaint in accordance with the Constitution for the right violated; - Initiate an effective and impartial investigation into the circumstances $\mathrm{II}.$ of torture and ill treatment of the Complainant.

### $Order$

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay the Complainant a sum of UGX 10,000,000/= (Uganda shillings ten million only) as general damages for the violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment. - 3. Each party shall bear its own costs.

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 HOIMA this .................................... $\ldots 2022$

**SHIFRAH LUKWAGO** PRESIDING COMMISSIONER $\mathcal{A} = \mathcal{A}$ $\mathcal{L} \in \mathcal{L}$