[2016] UGHRC 10


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL AT KAMPALA

### **COMPLAINT UHRC NO. UHRC/231/2006**

MINGE DOUGLAS :::::::::::::::::::::::::::::::::::: **COMPLAINANT**

-AND-

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

#### (BEFORE HON. COMMISSIONER STEPHEN BASALIZA)

#### **DECISION**

The complainant brought this complaint against the respondent seeking compensation for alleged violation of his right to protection from torture, cruel, inhuman and degrading treatment. He alleged that on 23^rd August 2003, while he was an inmate at Sentema Prison, he fell sick and was instructed to clean the toilet. That he was unable to perform the task because of his poor health condition and explained the situation to the spouse of the Officer In Charge (OC) who was also working in the same prison. That the $O/C$ 's spouse then informed her husband who instead ordered two warders to beat him up. That he was beaten by Corporal Nsamba and another warder to the point of becoming unconscious. That after he gained consciousness, he was still ordered to clean up the toilet with bare hands.

He contended that the actions allegedly committed against him by the said warders amounted to violation of his right to freedom from torture, cruel, inhuman and degrading treatment or punishment.

The respondent through his representative Ms. Jane Francis Nanyuma denied the complainant's accusations.

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#### **ISSUES**

- $1.$ Whether the respondent's agents/servants violated the complainant's right to protection from torture, cruel, inhuman and degrading treatment. - $2.$ Whether the respondent is liable for the violations. - Whether the complainant is entitled to compensation. $3.$

This matter was heard in six hearings.

The first one took place on 9^th December, 2011 with the complainant present and respondent absent so the matter did not take off. The second hearing was held on the 26^th April, 2012, both parties were present and the complainant testified but was not cross examined since Respondent's counsel in personal conduct of the matter was before another Court. The 3^rd hearing was held on18^thJune, 2012, the complainant was present with two witnesses and the respondent was absent. The witnesses testified but were not cross examined. On the fourth hearing, the complainant was present but the respondent absent with no explanation. The complainant's case was closed since counsel for the respondent had waived his right to cross examine the complainant and his witnesses. On the fifth and sixth hearings, the matter came up for defence but counsel for the respondent did not bring any witnesses and the matter was closed for written submissions.

I therefore wish to note that from the record, the respondent neither called any witnesses nor filed written submissions in defence. This however did not take away the complainant duty to prove his case against the respondent to the satisfaction of the tribunal as provided

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"

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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.

# Whether the respondent's agents/servants violated the complainant's right to protection from torture, inhuman and degrading treatment:

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. This 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.

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 Convention Against Torture (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 Universal Declaration of Human Rights 1948 states under Article 5 that

"No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Similarly the International Covenant on Civil and Political Rights (ICCPR) 1996 explicitly prohibits torture or cruel, inhuman or degrading treatment or punishment, when it states under Article 7 that,

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The African Charter on Human and Peoples Rights (ACHPR), 1981 under Article 5 also prohibits torture or other forms of ill treatment by stating that

"All forms of exploitation and degradation of man, particularly slave trade, torture, cruel, inhuman or degrading treatment or punishment shall be prohibited."

In the case at hand, the complainant's allegations would constitute "torture" if the same were proved as such, taking into account the definition of torture as provided under Article 1 of the CAT that I have already cited.

I shall thereafter evaluate the evidence adduced with a view of determining whether the treatment that is alleged to have been meted out on to the complainant by the state agents amounted to the level of severity that constitutes what would be categorized as torture according to the definition of torture provided under Article 1 of the CAT and also in line with the related

conceptualization of torture. If not, then I shall determine whether the effects of the same actions amount to what is categorized as cruel, inhuman or degrading treatment or punishment.

In this respect therefore, I shall evaluate the evidence to determine whether the four important ingredients and contours that are identifiable in the CAT definition and the current international concept of torture are proved by the evidence adduced.

The four ingredients and contours are;

- i. Whether the action has caused the victim severe pain or suffering, whether physical or mental, - ii. Whether such pain and suffering the act has caused was intentionally inflicted on the victim. - iii. Whether the purpose of the action was to obtain information or a confession or for punishment, intimidation, coercion or for any reason based on discrimination, - Whether the actions were inflicted by or at the instigation of, or with the iv. consent or acquiesce of a public official or other person acting in official capacity.

Once these ingredients are proved, then it will have been established that the complainant was subjected to torture in contravention with the laws of Uganda.

**CW1**, the complainant testified that on $23^rd$ August 2006 while in detention at Sentema Prison, he was selected by Sgt Samba and Cpl Kato to be amongst those to work in the toilet. At that time, the toilet had jericans which when full they would empty in a place about 50 meters away but were not provided with any gloves for carrying. That Mr. Bossa asked him why he was not corresponding since he had questioned them why they had no gloves. That he stopped everyone who was working with and called for a parade. He told them

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that the complainant was going to serve as an example because he was compelling others to rebel.

#### He added as follows:

"He ordered Cpl Nsamba to start beating me with a stick in the room. He started beating as other prisoners were watching and the Corporal explained to others that I was being punished because I was rebellious. As I was being beaten I tried to run and the Corporal ordered four people to hold me. I was beaten very much on the back and on the left leg after which I was released and I fell down unconscious and when I regained my consciousness I told them that I was beaten for nothing. Corporal Nsamba said that still I had not felt it. He used a gun to pierce me on the left leg on the foot and ankle. I was again taken back to the toilets to carry the jericans that were full of waste. I was very weak so I fell down. My fellow in mates including Wasswa the Katikiro carried me to the dormitory. When my inmates went back to work the OC and Kato asked why I had not been taken back to court. I was not taken to court yet I was supposed to go on the 15^th August. I was not given any treatment. My wounds were rotting and had puss. Before I was asked to clean the toilets I was a bit sick with chest pain because we were usually made to carry heavy loads. I had informed the OC about it. The OC said prisoners do not fall sick in prisons."

He further added that on the 26^th of August he was supposed to go back to court but still was not taken. That on the 4^th September his friends carried him to the vehicle and he was taken to Nabweru court. When he reached court, the Magistrate saw his condition and granted him bail. That His worship Wakombi gave himshs.30, 000=for someone to escort him to Mulago Hospital. That he went to Kabalagala to the human rights centre and they sent him to ACTV where he was getting treatment. That due to the torture he went through, he asked to be compensated.

The photograph of the complainant showing the bruises and the medical report from ACTV were tendered in as exhibits to form the complainant's case and the same marked **Ex1 and Ex2.**

CW2, Dr. Kyazze David testified that he was a medical doctor by profession having a degree of Bachelor of Medicine from Makerere University and Diploma in Tropical Medicine from the University of Witwatersrand in South Africa. That he had practiced for 32 years and was at the time of the testimonyworking with the Children's clinic in Nakasero. That he worked with ACTV some time back but did not remember the year.

He stated that he recognize the document as a report of the Complainant from the time he was first seen by ACTV. That the Complainant was Douglas Minge and he is the one who authored the report.

He stated that upon examining the skin the complainant had lash marks on the buttocks, right thigh and back superlative ulcer on the left foot. The mental status was normal diagnosis with multiple scars and ulcer on the left foot compatible with the torture. At the end of the report are diagrams of what was found on the body.

In conclusion from the examination was that the Complainant was injured. That the injuries were not seen but could see scars except the wound on the left which was septic. He clarified the injuries as grievous bodily harm.

The complainant produced another witness CW3,Mr. Augustine Mulinde who testified as follows;

"In 2006 in August I was at one time arrested by a member of the Town Council accusing me of having a home without a toilet. I was then taken to the Magistrate whom I explained to but ordered that I be detained for one day to Sentema Prison. When I reached Sentema prison I found Minge Douglas. We

$\overline{7}$ were detained with the Complainant and the next day we were ordered to work but I was ordered go back since I was old but the Complainant was ordered to clean the toilet. At that time I was in the ward I heard the Complainant say that he could not clean without gloves. He was then beaten by a warder whose name I do not know. The OC asked him why he was beating the Complainant. He said because he wanted other prisoners to note. They then ordered other convicts to get the Complainant then they torture him. One of the warders holding a gun pierced him on the leg. I saw blood oozing out of his leg. From there he was still ordered to go and work. He still asked for gloves after that he was taken I do not know what transpired. I was detained for one day. I spent there two nights and the next day I was released. The OC's name is Afande Bossa. Before he ordered to clean the toilets the Complainant was physically okay and he did not look like he was sick. Although the day of the incident he complained of falling sick that is why he was ordered to clean the toilet."

As noted before, the respondent's counsel never cross examined the complainant and his witnesses nor did she file written submissions despite the reminder to do so.

In the case of **TOMASI VS FRANCE [1992]15 EHRR 25**, the Appellant was arrested on suspicion of terrorism. Medical evidence was adduced that he had received large blows on his body. The Government did not provide an alternative explanation on how the blows had been occasioned on the Appellant. The European Court of Human Rights held that "In the absence of any explanation by Government for the marks, which marks he did not have at the time of his arrest, it would be presumed as acts of torture by the respondents agents for which the respondents would be held vicariously liable."

The respondent has not in any way provided a reason on how the complainant sustained the alleged injuries while at Sentema Prison. In his response, the Officer In Charge Sentema Prison denied making any orders for the beating of the complainant in a letter to UHRC dated 19^th Oct 2007. I note that the respondent's agent totally failed to explain how a person who was in detention at his facility sustained injuries which he never had at the time of detention. Therefore, the complainant's evidence is not only solid but largely unchallenged.

## In the case of **GEORGE ASSIMWE VS ATTORNEY** GENERAL HCCS NO.481/1997

Where the plaintiff closed his case and the defendant offered no evidence, it was held by P. Magamba J.that the plaintiff's evidence was not controverted and had to be accepted as the truth.

From, the above evidence I note that the ingredients of torture discussed above were proved which were; the respondent's agents actions caused the victim severe pain or suffering, whether physical or mental, the pain and suffering the act caused was intentionally inflicted on the complainant, the purpose of the action was to for punishment, and the actions were inflicted by or at the instigation of, or with the consent or acquiesce of a public official or other person acting in official capacity.

I therefore find on the balance of probabilities that the respondent's agents violated the complainant's right to protection from torture or cruel, inhuman or degrading treatment or punishment;

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## Whether the respondent (Attorney General) is liable for the violations <u>against the complainant's rights.</u>

As resolved in the above issues, there was a violation of the complainant's right freedom from torture or cruel, inhuman or degrading treatment or punishment contrary to Articles 24 and 44 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 soldiers 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 $6^th$ schedule to the constitution of Uganda 1995 as amended, ................................... 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 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 prison warders of Sentema Prison beat the complainant on grounds that he had refused to clean the toilet without gloves. These warders 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 warders who beat the complainant during his detention there.

Therefore the Attorney General in this matter is vicariously liable for the violation of the complainant's right of to freedom from torture or cruel, inhuman or degrading treatment or punishment by warders attached to Sentema Prison who individually and severally were at the time serving their master and employer the state.

## Whether the complainant is entitled to compensation.

Article $53(2)$ of the Constitution provides:

"The Commission may, if satisfied that there has been an infringement of a human 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."

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

In the instant case the complainant prayed to this tribunal to order compensation to him in monetary terms for the money spent on treatment and the suffering he went through. In my opinion the complainant is entitled to compensation for his right that was violated. To determine the amount of money paid to him it will be based on the injuries he sustained and the severity of the pain and suffering he experienced as a result of torture.

I will also consider the fact that the right to protection from torture, cruel, inhuman and degrading treatment is an absolute right under article 44(a) of the Constitution of the Republic of Uganda.

In **Kisembo Milton Vs Attorney General FP/005/2004** the complainant was beaten all over the body pushed against the wall and punched heavily by policemen at Budibugyo police station; the Presiding Commissioner C. K. Karusoke awarded the complainant Ug Shs 3,000,000(Three million Uganda Shillings) as compensation for violation of his right to Protection from torture, cruel, inhuman and degrading acts.

Similarly in Omola Moses Vs. Attorney General UHRC/SRT/206/2005 the complainant was beaten by the O/C Kamod Police Station with a stick and suffered soft tissue injuries on the left arm, back and buttocks. The injuries were classified as harm and the Tribunal awarded the complainant UG Shs. $3,000,000/-$ (Three million Shillings) as compensation for the violation of his right to protection from torture, cruel, inhuman and degrading acts.

In relation to the matter before this tribunal, considering the pain and suffering the Complainant underwent and also the fact that there is inflation at the moment, the complainant in this case is awarded more than the one in the cited case. I accordingly award higher than the above case. I accordingly award Shs. 5,000,000 (Five Million Uganda Shillings) to the complainant as full and final compensation for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

## **ORDER**

- $(I)$ The complaint is allowed in part. - $(II)$ The respondent is ordered to pay the complainant, Minge Douglas a sum of U. Shs. $5,000,000=$ (Five Million Shillings) as general damages for violation of his right to protection from torture or cruel, inhuman or degrading treatment or punishment. - The U. Shs 5,000,000= (Five Million Shillings) will carry interest at $(III)$ court rate from the date hereof until payment in full.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date hereof.

DATED at Kampala this 26 day of Old World 2016

Charala 22

HON. STEPHEN BASALIZA

PRESIDING COMMISSIONER