[2025] UGHRC 4


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

### **COMPLAINT NO. GLU/20/2010**

- **OLAKE MICHAEL** $1.$ - **ABAK MORRIS** $2.$

**COMPLAINANTS**

#### -AND-

**RESPONDENT ATTORNEY GENERAL**

$\mathbf{I}$

$\mathbf{1}$

### **CORAM:**

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

### **DECISION**

The 1^st complainant is a peasant farmer and a resident of Ocamayom, Adok, Agwata in Dokolo District. The 2^nd complainant is a peasant farmer and a resident of Agolowele, Adok, Agwata in Dokolo District.

The complainants brought this complaint jointly against the respondent as alleged victims of torture.

It was alleged that on the night of 21^st September 2009 there was a joint Uganda Peoples Defence Forces (UPDF) and Uganda Police Force (UPF) operation to recover guns in the hands of unauthorized people. The complainants testified that they had been falsely accused of illegal possession of guns. The UPDF carried out a thorough search in their homes but no guns were recovered.

The complainants alleged that during the search for the guns, they were interrogated and severely beaten by UPDF soldiers who demanded that they produce the said guns. The complainants were then arrested and taken by the UPDF soldiers to Agwata Police Post where they were briefly held and beaten again. They were set free without any formal charge being brought against them.

The complainants contended that the above alleged actions of the UPDF soldiers amounted to violation of their right to protection from torture, cruel, inhuman and degrading treatment or punishment. They hold the respondent vicariously liable for their actions, and sought compensation.

The respondent's representative, Ms. Doris Twesigomwe, denied liability.

#### **Issues:**

- Whether the respondent's agents violated the complainants' right to $(i)$ protection from torture, cruel, inhuman and degrading treatment. - Whether the complainants are entitled to any remedy. $(ii)$

We put on record that the current tribunal took over hearing of this mater after the complainants had already testified and closed their case. The matter was pending defence. This decision is therefore partly based on the record of proceedings captured by the presiding Commissioner then, Dr. Katebalirwe Amooti Wa Irumba.

Back to the issues:

# (i) Whether the respondent's agents violated the complainants' right to protection from torture, cruel, inhuman and degrading treatment:

The term 'torture' is defined by the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment $(UNCAT)$ 1984 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*"

Torture is outlawed by Article 24 of the Constitution of the Republic of Uganda (hereinafter called "the Constitution") which provides:

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

Torture is further outlawed by regional and international human rights instruments to which Uganda is signatory. Article 5 of the African Charter on Human and Peoples Rights (ACHPR), and Article 7 of the International Covenant on Civil and Political Rights (ICCPR) refer. Torture is also a crime under the Penal Code Act (PCA), and the Prevention and Prohibition of Torture Act (PPTA).

Both Olake Michael and Abak Morris testified that Uganda Peoples Defence (UPDF) soldiers subjected them to severe beatings during the searches at their homes, and at Agwata Police Post. But Abak added that while on the Double Cabin car on the way to Agwata Police Post he was subjected to further acts of torture.

Olake testified that the soldiers arrived at his home at around 11 pm on 21^st September 2009. They were 5 and dressed in official army uniform. They confined him and his family in the house until 6 am. Olake further testifies as follows:

"At around 6 am I was ordered to get out of the house, made to sit down and they asked me to produce a gun. I denied owning a gun. One of the soldiers handcuffed me saying I had to produce the gun. They then searched my house but did not find a gun".

Olake said that the soldiers made a phone call to some person and immediately thereafter they started beating him. He said:

"They beat me with sticks on my ankles, knees, hands, legs and the entire body. My legs got swollen. They hit my head with a gun butt and I suffered a wound. A handcuff bruised my left hand. As they beat me they demanded that I produce a gun. This lasted 2 hours. Their commander then stopped them from beating me".

Olake added that the soldiers carried him to the car. He was carried because his legs were swollen and he was still in handcuffs. He found Abak on the car. Olake further said:

"At Agwata Police Post the soldiers would come to the cell one by one and kick us as they demanded that we produce guns. We stayed at Agwata Police Post for about one hour".

Ms. Twesigomwe's cross-examination of Olake centered around the security situation in the area during the period in issue, and the sequence Ms. Twesigomwe later presented 2 defence witnesses; of events. Policemen, who said that they had accompanied the soldiers during the operation and that none of the complainants was ever subjected to any form of torture.

Olake's testimony before the tribunal on 14^th May 2019 tallied, in substance, exactly with his statement before the investigator 9 years earlier. In his statement Olake had said in part as follows:

$\mathbf{6}$

"I saw soldiers wearing army uniform. Immediately I got out they told me to sit down. A soldier pulled out handcuffs and handcuffed me. One of the soldiers said, you have a gun which we need you to give us before we do anything bad to you. I told them I did not have a gun. They beat me seriously all over the body and I started bleeding from my head wound. The Gombolola Internal Security Officer (GISO) came and told them to stop beating me. They put me on the car where I found Abak and we were driven to Agwata Police Post".

Olake's statement was consistent with his testimony before the tribunal on all material particulars and we accept it as truthful. It was also corroborated by the testimony of his co-complainant, Abak Morris who said that when Olake was put on the car, he saw on Olake "injuries on the head, legs and back".

Olake's testimony was further corroborated by the testimony of CW2, Ayoo James, then LC. I Chairman of Ocamayom village. He was also He witnessed the events in issue as area $LC.1$ Olake's neighbor. Chairman. In fact the soldiers themselves sent one James to call him. They told him they were searching for guns in possession of people who were not authorized to have them. He said they thoroughly searched Olake's home but did not find any gun. He further testified as below:

$\overline{7}$

"After failing to find a gun they started beating him seriously saying" they were removing his 'control pins'. He had injuries all over his body. He was bleeding on his head".

This testimony is a perfect match with his statement recorded on 25^th June 2010 and we accept it as truthful. It was not disturbed on crossexamination either. Ms. Doris Twesigomwe asked Ayoo what he, as area LC.1 Chairman did to stop the beating of Olake by the soldiers. To this Ayoo answered, "I had no power to stop the soldiers".

Olake Michael, just like his co-complainant Abak, did not adduce any medical evidence. But as was held by the Court of Appeal in **Paul** Wanyoto v Sgt. Oumo and Attorney General Civil Appeal No. 91/2021, the requirement for medical evidence to prove torture has no legal basis. Other evidence, for example, credible testimonies of eyewitnesses can suffice. We think that Olake's testimony was honest and truthful and did not contain any exaggerations. It was also well corroborated by the testimonies of Abak and Ayoo.

But Abak Morris' case was problematic. The quality of evidence presented by the 2 complainants was so different that we wished they had perhaps filed separate claims. Abak had recorded in his statement before the investigator that the events in issue occurred on $20^th$ September 2009

at 1 pm. We think that this was a harmless innocent error which should not count against him.

Abak testified that on 21^st September 2009 at 1 am his neighbor Odong Isaac noticed strange people outside his house and called the village Chairman; Nicholas Menya. The "strange people" were UPDF soldiers. Menya called him and asked him to get out. He said that immediately he got out soldiers slapped and handcuffed him. They ordered him to sit down. They asked him to produce a gun they said he illegally possessed. They searched his house and did not find any gun. He said they started beating him on his buttocks with sticks. From then on Abak sounded dramatic to the very end.

Abak told the tribunal as follows:

"I was on the vehicle. My hands were placed on a metal. I was still in handcuffs. They banged my fingers and knees".

The above allegation is not in his 10^th December 2009 statement. If indeed this was true. Abak should have included it in his statement, more so, then his memory was sharper. And Olake who was with him at that time did not attest to this. Abak went on:

$\overline{9}$ "I was taken to Olake's home and he was brought on the car. I witnessed Olake being beaten from his home. They continued beating both of us. They poured water on Olake".

The problem here is that Olake testified that by the time Abak was taken to Olake's home, the soldiers had stopped beating Olake on the instructions of the GISO. He said he had even showered and changed clothes. Olake never testified that any of them was tortured on the car. Olake never said soldiers or any person poured water on him. All these allegations were wild imaginations by Abak.

Abak went on to allege as follows:

"My private parts were tied with a black rubber band commonly used on bicycles. It was a bicycle tyre tube and I felt severe pain".

Abak said that all this happened to him while they were on the car on the way to Agwata Police Post. How come Olake did not notice this horror? Soldiers had arrived at Abak's home at around 1 am and left with him at around 6 am. They stayed at his home for about 5 hours. If they had wanted to carry out such a monstrous act on him why did they wait until daybreak to inflict on him such pain in the presence of Olake? Why didn't they do so inside his house? And how big are Abak's private parts as to require a bicycle tyre tube to tie them? Is he as well-endowed as an elephant? He went on to claim that, "I healed apart from my manhood".

On cross-examination by Ms. Doris Twesigomwe Abak said, "I have been using local herbs and have somehow improved my manhood. I also get manpower drugs which help for one day".

Abak further alleged:

"Around 3 pm the next day I found myself in Gift Life Hospital. I do not know how I moved from Agwata to hospital and who took me there. I spent 4 days in hospital".

Here Abak was implying he had fainted at Agwata Police Post.

But this is what Abak had recorded in his statement on 10^th December 2009;

"Around 5 pm one of the soldiers said that we were free to go back. We were released and my sister Grace took me to a clinic to get treatment".

Abak never fainted at any one moment. He was fully conscious. He was not taken to a hospital. In fact the medical treatment notes he brought to the UHRC investigator, which are actually fake, were authored by "Gift Lifecare Clinic and Laboratory Services, Teso-Bar, Corner Kamdini" not a hospital. That clinic had no capacity to admit a patient.

Abak's theatricks were not done. He brought a "witness" who was equally bizzare. This was Nicholas Menya who, during the period in issue, was the LC.1 Chairman of Agolowelo village. Menya's lies surpassed those of the man whose "case" he had come to support. Menya claimed that during the search inside Abak's house, the soldiers "dug" the floor of the house which Abak himself never said. He added this:

"5 soldiers beat Abak with sticks on the back, waist and buttocks. This lasted an hour. When they put Abak in the car he was very weak and had injuries all over his body. While on the car the soldiers stepped on him. As they drove off we heard Abak shouting that they were tying his testicles. We thought he was going to be killed and dumped".

Within the same breath Menya said, "I was at a distance and could not see the injuries on him". Menya on his admission said that he did not witness anything, yet he came here to utter falsehoods to mislead the tribunal. Abak had said he was beaten with sticks on the buttocks not those other parts listed by Menya. Abak never said soldiers had stepped on him. Again, Olake did not witness any such stuff.

Menya ended with:

"About 9 months later, Abak's wife left and I do not know why she left. From 2010 todate Abak has no wife".

Menya was trying to buttress his lie that the soldiers traumatized Abak's private parts. Menya was a hired arsenal who Abak brought to spew whatever he had coached him to say. His evidence is utterly worthless and must be disregarded.

Menya also testified that Abak was admitted at Lira Hospital for 7 days for treatment for his alleged torture. Abak himself had said that he was admitted at "Gift Life hospital" (a non-existent hospital) for 4 days, not 7days. We know that Abak was never admitted to any hospital. It looks like Menya threw away the script and started rolling off his tongue whatever came to his mind at that time.

The exaggerations and sheer falsehoods Abak injected in his case are out of this world. This tribunal will not let him benefit from his conmanship and deceitfulness.

The respondent's witnesses; Corporal (Cpl.) Okwany Fred, and Special Police Constable (SPC) Apunyo Sirino, testified that none of the complainants were ever tortured or physically hurt in any way. SPC Apunyo and SPC Owakiro were deployed to accompany the soldiers on the operation to recover guns. Okwany was the Officer-in-Charge $(O/C)$ , Agwata Police Post. He said that upon seeing Olake and Abak at the Police Post, he declined to have them detained there. He said:

"I told the soldiers to take them where the case had been reported." Olake and Abak were fine".

Apunyo also said Olake and Abak were okay and unharmed. Olake asked each one of them; "Why did you refuse to detain us in your custody if we were fine? Why do you say I was fine yet you saw me bleeding and even empathized with me?". Both defence witnesses insisted that they did not see any injuries on any of the complainants, and that the expression of sympathy was because the soldiers had taken the complainants to the wrong jurisdiction.

It was the contention of Olake that the soldiers had tortured them so badly that the Police Officers of Agwata Police Post feared that he and Abak would die in their custody

The explanation given by Cpl. Okwany to the tribunal as to why they refused to have the complainants detained at Agwata Police Post is diversionary and misleading. We are all aware that a suspect of a crime can be detained at any Police Station or Police Post in Uganda pending transfer to another Police facility where she/he is required. We have only one Uganda Police Force. Police in Kisoro can arrest and detain a suspect wanted by their counterparts in Karamoja. We tend to agree with Olake that indeed the actual reason Cpl. Okwany feared to detain him in Agwata Police Post was the poor condition he was in, and did not want to carry the cross for the UPDF soldiers.

We are satisfied that the 1^st complainant, Olake Michael has proved that UPDF soldiers from Special Investigations Branch (SIB) 4^th Infantry Division arrested, brutally beat and caused severe pain and suffering to Their actions constituted torture, cruel, inhuman and degrading him. treatment. Throughout the material time they were acting in the course of their employment as servants of the state. The respondent is vicariously liable for their actions.

For reasons herein aforementioned, the claim by the $2^{nd}$ complainant, Abak Morris fails. The claim by the 1^st complainant, Olake Michael is upheld.

## (ii) Whether the complainants are entitled to any remedy:

The 2^nd complainant having failed to prove his case against the respondent, is not entitled to any remedy.

The 1^st complainant, Olake Michael is entitled to compensation. Articles 50 and 53(2) of the Constitution refer. $\frac{1}{2}$

In assessing quantum of damages to be awarded to Olake we will consider the extreme physical and mental pain he was subjected to. He was severely beaten with sticks all over the body. He was hit with a gun butt on the head and suffered a wound. The head is one of the most delicate parts of the body. Severe damage to the head can be fatal. He suffered bruises on his hands especially the left hand as a result of being handcuffed for long. He was kicked by the soldiers while in detention at Agwata Police Post. It was mentally exhausting to be required to produce a gun he did not possess. One Okino, for reasons that were not disclosed had falsely accused Olake of illegal possession of a gun. Okino then disappeared before the searches began.

The actions of the UPDF soldiers of Special Investigation Branch (S. I. B.) were oppressive, cruel, sadistic, dehumanizing, arrogant, wanton, reckless, criminal and unconstitutional.

We want to remind the UPDF of their obligation to respect human rights and freedoms in the performance of their duties. Article 221 of the Constitution refers.

We will further consider that the right to freedom from torture is an absolute right under Article 44(a) of the Constitution. Under no circumstances whatsoever can torture be acceptable.

In consideration of all the above factors, we deem U. Shs.15,000,000 $=$ (Fifteen Million Shillings) adequate compensation to Olake Michael. We so award.

## **ORDER:**

- The 2^nd complainant, Abak Morris' complaint is **dismissed**. $(i)$ - The 1^st complainant, Olake Michael's complaint is allowed. $(ii)$ - Michael Olake $(iii)$ The respondent $i$ s ordered to pay U. Shs.15,000,000= as general damages for violation of his right to protection from torture, cruel, inhuman and degrading treatment. - The U. Shs.15,000,000= will attract interest at 10% per annum $(iv)$ from the date hereof until payment in full.

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

....... day of February. 2025. DATED at Lira this...

HON. MARIAM WANGADYA

**CHAIRPERSON**

HON. COL. (RTD.) STEPHEN BASALIZA

HON. LAMEX OMARA APITTA

HON. CRISPIN KAHERU

COMMISSIONER

Hotel m **COMMISSIONER COMMISSIONER**