[2025] UGHRC 6


# THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL **HOLDEN AT SOROTI**

### **COMPLAINT NO. SRT/143/2009**

**COMPLAINANT OJUR LAWRENCE** $\begin{array}{cccccccccccccccccccc} \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \bullet & \$

## $-$ AND-

#### **RESPONDENT** ATTORNEY GENERAL :::::::::::::::::::::

## $\underline{\textbf{CORAM}}:$

| 1. HON. MARIAM WANGADYA | CHAIRPERSON | |---------------------------------------------------|--------------| | 2. HON CRISPIN KAHERU | COMMISSIONER | | 3. HON. COL. (RTD.) STEPHEN BASALIZA COMMISSIONER | | | 4. HON. LAMEX OMARA APITTA | COMMISSIONER |

## **DECISION**

The complainant brought this complaint against the respondent seeking compensation for alleged violation of his human rights.

Ojur Lawrence, then a 38 year old peasant of Osongai, Kapujan, Katakwi District alleges that on 8^th October 2009 while returning to his home from Kelim village, he found a group of people by the roadside near Ariet Primary School. One of them, a man who turned out to be Opus, a Uganda Peoples Defence Forces (UPDF) soldier, stopped him. He asked him if he was Ojur Lawrence to which he answered in the affirmative. Opus immediately held him by the trousers and began beating him. Two Policemen from Apapai Police Post joined Opus in severely beating Ojur. They accused him of defiling a girl called Auma Agnes, a niece to Opus and impregnating her, which Ojus denied.

Ojur further alleged that the Policemen then arrested him and took him to Apapai Police Post where they again beat him. The next day they moved him to Katakwi Police Station where he was detained. On 21^st October 2009, he was taken to Court and charged with defilement. He was remanded to Prison, and was released on bail after 2 months. The charge against him was later dropped for want of prosecution.

It was contended by the complainant that the alleged actions of Opus and the Policemen constituted violation of his rights to protection from torture, cruel, inhuman and degrading treatment, and personal liberty. He held the respondent vicariously liable. The respondent's representatives Mr. Eric Mukisa and Ms. Mazinga Jackeline Ssemakula denied liability.

The issues as framed by Ms. Chelimo Florida Chebet, learned Commission Counsel were:

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#### $\underline{\textbf{Issues}}:$

- Whether the respondent's agents violated the complainant's right $\mathbf{1}$ . to protection from torture, cruel, inhuman and degrading treatment or punishment. - Whether the respondent's agents violated the complainant's right $2.$ to personal liberty. - Whether the complainant is entitled to any remedies. $\overline{3}$ .

Before we resolve the above issues, we put on record that the tribunal as currently constituted took over hearing of this matter at a stage when it was part heard. It was originally heard by Commissioner Dr. Katebalirwe Amooti Wa Irumba, sitting as a sole Member. The complainant had already testified and had been cross-examined by Mr. Eric Mukisa, learned Counsel for the respondent. Hence, this decision is partly based on the record of proceedings as captured by the previous presiding Commissioner, and partly based on our own record.

We also note that the respondent's representatives neither called witnesses, nor filed submissions in defence of the matter. All the same the complainant retained the duty to prove his case against the respondent on the balance of probabilities. Sections 101 and 102 of the Evidence Act Cap 6 refer.

#### **Back to the issues:**

We will not belabor resolving the second issue (on personal liberty) as it was totally unwarranted and redundant. Indeed this was pointed out by Mr. Peter Angoli in his legal opinion dated 26^th August 2014. We do not comprehend why this opinion was rejected by the learned Director Complaints, Investigations and Legal Services (DCILS).

# Whether the respondent's agents violated the complainant's $(i)$ right to protection from torture, cruel, inhuman and degrading treatment or punishment

The term "torture" is defined under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) 1984 as:

"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".

Torture is outlawed by Articles 24 and 44(a) of the Constitution of the Republic of Uganda (hereinafter called "the Constitution").

Torture is further outlawed by international human rights instruments to which Uganda is signatory. [See Article 5 of the African Charter on Human and Peoples Rights (ACHPR), and the entire United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).

Acts that constitute torture are also crimes under the Penal Code, and the Prevention and Prohibition of Torture Act (PPTA). The acts complained of by Ojur would constitute torture if they are proved.

Ojur testified that on the date in issue he was stopped by a man in army uniform near Ariet Primary School who slapped him. Two other men in maroon uniform who turned out to be Special Police Constables (SPCs) from Apapai Police Post slapped and kicked him. He said they beat him on the head, and kicked him on the chest and back. As they beat him they said, "You are the people spoiling our children". The beating lasted about 20 minutes. At that point Ojur lost consciousness. The UPDF soldier and the two Policemen then handcuffed Ojur and took him to Apapai Police Post. Ojur further testified that when they reached Apapai Police Post, the Policemen beat him again. He said:

"One Policeman came with a piece of timber which had nails and used it to hit me on the head and chest. The nails pierced me on the head and chest".

Ojur said that he suffered pain, and the injuries on the head, chest, and back. While on remand in prison he was taken for treatment at Katakwi Hospital.

Ojur's testimony that he was tortured by Opus, a UPDF soldier, and two Policemen of Apapai Police Post should be accepted as truthful despite some exaggerations. The few questions put to him during cross-examination by Mr. Eric Mukisa, learned Counsel for the respondent only suggested that Ojur was possibly beaten by people other than Opus and the two Policemen. To this he answered in the negative saying that the two Policemen and Opus were all in their official uniform.

We however, reject Ojur's claim that while in detention at Apapai Police Post he was hit on the head and chest with a piece of timber This is not contained in his complaints which had nails on it. registration form. We believe that an act of this nature is too gruesome to have been forgotten by Ojur at the time of lodging his complaint in 2009, more so then, his memory was still very fresh. His accusation that he was hit with a piece of timber with nails on it was therefore an afterthought and false. But we accept the rest of his evidence.

Mr. Eric Mukisa also challenged Ojur Lawrence on the absence of medical evidence. Ojur ably explained why he did not have a medical report to support his case. He was taken to Katakwi Hospital as a remand prisoner. He was not issued with any documents. He spent two months in prison and during that period he was unable to access Perhaps, Uganda Human Rights Commission the hospital again. investigators should have gone to Katakwi Hospital to obtain a record of his treatment. They did not do so. But this cannot be fatal to his case in light of the other evidence he adduced. In any case, as was held by the Court of Appeal in **Paul Wanyoto v Sgt. Oumo and AG, CA** *No.91/2021*, the requirement for medical evidence to prove a case of torture has no legal basis.

Ojur's testimony was corroborated by the testimonies of his two eye and ear witnesses; Aujo Alice and Akiteng Margaret. Both of these women are neither blood relatives nor friends of Ojur. They did not even know each other. They are neutral objective witnesses who told the tribunal only what they personally saw and heard.

Aujo Alice, at the time of giving her evidence, was a Security Guard in Masindi. But during the material time she was a student in Katakwi District.

Aujo testified that while on the way to the trading center she saw a crowd of people along the road near Ariet Primary School. She saw

$\overline{7}$ Ojur lying down and crying. A man in uniform stepped on Ojur's head. She also saw a Policeman slap him. The Policemen handcuffed Ojur and took him to Apapai Police Post. On cross-examination by Mr. Eric Mukisa, Aujo said that she did not see civilians beat Ojur. She said:

"He was slapped by a Policeman. I used to see that Policeman at It is not true that the crowd beat the Apapai Police Post. complainant. I did not know whether he was unconscious".

Akiteng Margaret was a teacher at Ariet Primary School during the period in issue. She saw Ojur riding a bicycle on the road near the school. She was distracted by commotion and decided to go to the scene where the noise was coming from.

She testified as follows:

"I saw a UPDF soldier and a Policeman struggling with Ojur over his bicycle. I knew the soldier. He used to stay around the school with the aunt of Auma Agnes who I heard had been impregnated by Ojur. I saw Auma's mother and aunt. They grabbed the bicycle from Ojur and Auma's cousin took it away. The UPDF soldier then stepped on his head".

On cross-examination by Mr. Eric Mukisa, learned Counsel for the respondent. Akiteng stuck to her story as earlier stated.

She said:

"I did not see the Policeman beat Ojur. I only saw the soldier step on his head. The soldier was a husband to Auma's aunt".

We accept the testimonies of the two witnesses – Aujo and Akiteng as truthful. Their evidence before the tribunal rhymed with the statements they had recorded before the Commission investigators. By the time they reached the scene, the torture of Ojur by Opus, the UPDF soldier and two Policemen was ongoing. They confined their testimonies to only what they themselves saw and heard and that was that; they saw Opus step on Ojur's head. They did not exaggerate anything, and had no interest whatsoever in the outcome of the proceedings. They therefore had no reason to tell lies to the tribunal.

We note that Ojur himself did not state that Opus stepped on his head, as testified by Aujo and Akiteng.

We believe that the only reason Ojur did not say so was because at the time Opus stepped on his head, he was unconscious and therefore unable to know whatever was happening to him.

We are satisfied that Ojur Lawrence proved his case that Opus, a UPDF soldier and two Special Police Constables (SPCs) of Apapai Police Post

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tortured him. They did so to compel him to admit that he had defiled Auma Agnes; Opus's niece and impregnated her.

The difficulty the tribunal now has is to determine whether Opus and the two SPCs, in committing those acts of torture against Ojur, were acting in the course of their employment as agents of the state.

Newbold, P, in Muwonge v AG 1967 EA 17 laid down the principle as follows:

"A master is liable for the acts of his servant committed within the course of his employment or, to be more precise in relation to a Policeman, within the exercise of his duty. The master remains so liable whether the acts of the servant are negligent or deliberate or wanton or criminal. The test is: were the acts done in the course of his employment or within the exercise of his authority? The acts may be so done even though they may be contrary to the orders of the master".

We are of the view that the actions of Opus, a UPDF soldier, in this case, were outside the scope of his employment as a servant of government. The duties of the UPDF are well spelt out in Article 209 of the Constitution of the Republic of Uganda as follows:

- To preserve and defend the sovereignty and territorial integrity of $\overline{a}$ Uganda; - To cooperate with the civilian authority in emergency situations $\mathbf{b})$ and in cases of natural disaster; - To foster harmony and understanding between the Defence Forces $c)$ and civilians, and to engage in productive activities for the development of Uganda.

Arresting suspects, more so civilians, is not part of the duties of a UPDF soldier. This is a responsibility given to the Uganda Police Force under Article 212 of the Constitution and the Police Act, Cap 303. Opus was therefore on a frolic of his own.

Opus wanted to be of help to the family of his wife. His wife was an aunt to Auma who allegedly had been defiled by Ojur. From the statement of Special Police Constable Edeiko Gabriel, Opus had registered a defilement case against Ojur at Apapai Police Post. Opus was the complainant in that case. The Officer-in-Charge (OC) Police Post constituted a team of Policemen to arrest Ojur. By the time they reached Ojur, Opus had already stopped Ojur and was beating him up. The two Policemen joined Opus in beating Ojur. The respondent cannot therefore be held liable for the actions of Opus. But the respondent is liable for the actions of the two Policemen.

Wherefore, we find on a balance of probabilities that the respondent's agents; the two Special Police Constables from Apapai Police Post violated the complainant's right to protection from torture, cruel, inhuman and degrading treatment. In so doing they were acting in the course of their employment as servants of the state.

## Whether the complainant is entitled to any remedies $(ii)$

It is extremely pathetic that Opus was not joined to this case as a corespondent to personally shoulder his responsibility for the crimes he committed against Ojur. In fact, in our assessment, most of the pain and injury suffered by Ojur was occasioned on him by Opus, and not the two Special Police Constables of Apapai Police Post. Opus is the one who started slapping and kicking Ojur before the two Special Police Constables arrived at the scene. He is the one who pushed Ojur down and stepped on his head. It was Opus who grabbed Ojur's bicycle and handed it over to Auma's mother and Auma's aunt. But since Opus was not a party to this case, no remedy can be granted against him. Article $52(3)(c)$ of the Constitution refers. Sadly, it is too late for Ojur to sue him personally.

We will proceed to determine the quantum of the damages to be awarded to Ojur against the respondent.

We will consider that the right to protection from torture, cruel, inhuman and degrading treatment is an absolute right under Article $44(a)$ of the Constitution. Under no circumstances whatsoever can this right to be taken away.

It was contradictory that the Policemen, rather than rescue Ojur from Opus' brutality, joined him into beating Ojur. It is the duty of the Police to prevent and fight crime.

The acts committed against Ojur were cruel, criminal, oppressive, arrogant, sadistic and dehumanizing. But the contribution to these acts by the respondent's agents was quite minimal in comparison to what Opus did to him.

In consideration of all the above circumstances we consider U. Shs.4,000,000= (Four Million Shillings) adequate compensation to the complainant. We so award.

## ORDER:

- 1. The complaint is allowed. - respondent the complainant ordered 2. The is to pay U. Shs.4,000,000= (Four Million Shillings) as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment.

3. The U. Shs.4,000,000= will carry interest at 10% per annum from todate until payment in full.

Either party dissatisfied with this decision is informed of the right to appeal to the High Court of Uganda within 30 days from the date hereof.

DATED at Soroti this ....................................

HON. MARIAM WANGADYA

HON. CRISPIN KAHERU

HON. COL. (RTD.) STEPHEN BASALIZA

HON. LAMEX OMARA APITTA

**CHAIRPERSON**

**COMMISSIONER**

COMM

**COMMISSIONER**