[2025] UGHRC 7


THE REPUBLIC OF UGANDA

### THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT KAMPALA

#### COMPLAINT NO. UHRC/02/2008

**COMPLAINANT** SGT. BYAMUGISHA FELIX :::::::::::::::

#### $-AND-$

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

#### CORAM:

L. HON. MARIAM WANGADYA

HON. COL. (RTD.) STEPHEN BASALIZA COMMISSIONER $2 -$

HON. LAMEX OMARA APITTA $\mathfrak{F}_{\mathbb{C}}$

HON CRISPIN KAHERU $\mathcal{A}$

**CHAIRPERSON COMMISSIONER COMMISSIONER**

## **DECISION**

The complainant is a 48 year old Uganda Peoples Defence Forces (UPDF) soldier who at the commencement of the hearing of this case was based at Kalongo, Bor, South Sudan. He brought this complaint against the respondent seeking compensation for alleged violation of his right to freedom from torture, cruel, inhuman and degrading treatment.

The tribunal as currently constituted did not hear this case. It was heard by former Commissioners Hon. Violet Akurut Adome, and Hon. Meddie B. Mulumba, sitting as sole Members. This decision is therefore based on their record of proceedings as it is.

Sgt. Byamugisha alleged that during the period in issue he was attached to 6^th Battalion in Mubende. On 12^th January 2008 at around 11 am, he, in the company of his wife Atubikirwe Florence was going to Kawandisa market. Upon reaching the Quarter Guard, Major Nelson Mugerwa, then Administrative Officer of Mubende demanded to see his gate pass which he did not have. Byamugisha argued that being a market day, everyone else was going out freely without a gate pass, and more so, heads of departments were not required to show gate passes before getting out. He too was a head of department.

Sgt. Byamugisha further alleged that at that point Major Mugerwa ordered Regimental Policemen (RPs) to arrest him. They immediately arrested and severely beat him with batons. He attempted to run away but was promptly rearrested and beaten even more severely resulting into severe pain and injury to him. The Regiment Policemen also undressed him in the presence of his wife and other people causing him extreme embarrassment.

$\overline{2}$

Sgt. Byamugisha contended that the alleged actions of Major Mugerwa and the other UPDF soldiers amounted to violation of his right to freedom from torture, cruel, inhuman and degrading treatment for which he holds the respondent vicariously liable. The respondent's representatives Ms. Jackie Amusugut, Ms. Namala Elizabeth Deborah and Mr. Musota Brian denied liability.

#### Issues:

- Whether the respondent's agents violated the complainant's right to $(i)$ freedom from torture, cruel, inhuman and degrading treatment; - (ii) Whether the complainant is entitled to compensation.

Before we resolve the above issues we note that although the respondent's representatives cross-examined the complainant and his witnesses, they did not present any defence to the case, and neither did they file any submissions in rebuttal thereof. All the same the complainant had 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.

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

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 Article 5 of the African Charter on Human and Peoples Rights (ACHPR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and the entire UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(UNCAT). Torture is also a crime under the Prevention and Prohibition of Torture Act, and the Penal Code.

The acts complained of by Sgt. Byamugisha Felix against Major Mugerwa and other UPDF soldiers of the 6^th Battalion would constitute torture if the same were proved.

Byamugisha told the tribunal presided over by Commissioner Hon. Violet Akurut Adome, that "about 12 RPs" beat him on the orders of Major Nelson Mugerwa. He testified, in part, as follows:

"Since the beating was so severe, I tried to run away towards the banana plantation. They ran after me, captured me and beat me thoroughly. They removed my clothes and I remained naked. I was severely bleeding and had wounds all over my body".

Byamugisha said that when the soldiers beating him noticed that the bleeding was very serious, they carried him to a health center within the barracks. He was admitted by Capt. Charles Nirikwaya. Byamugisha later escaped from this health facility and sought better treatment in Bombo Military Hospital, and later, Mulago Hospital.

$\mathbf{5}$

Byamugisha's testimony before the tribunal was a perfect match of his statement in the Complainant's Registration Form (CRF); a sign that he was telling the truth. Moreso, his testimony remained unshaken on crossexamination by Ms. Namala Elizabeth Deborah, learned Counsel for the respondent. Byamugisha also freely volunteered, without prompting, that he escaped from the health centre in the barracks and went and booked himself in Bombo Military Hospital. That he volunteered information on breach of the rules is a sign that he was a truthful and honest witness.

The complainant's testimony was corroborated by that of CW1, his wife She was with him throughout that ordeal and Atubikirwe Florence. witnessed firsthand all that transpired. She testified in part as follows:

"They beat him with batons. They undressed him and he remained naked. They beat him heavily and he bled through the nose and the whole body. His head was badly beaten. It got swollen. He tried to escape to the banana plantation. They captured him and beat him thoroughly. All the people in the barracks gathered to see what was happening. They put him in the cell. I begged Afande Mugerwa to take him to the clinic. When this was granted I looked for a bodaboda and helped him to escape from the clinic as he was getting little attention. He went to Mulago Hospital and was treated".

$\mathbf{6}$

Again, Atubikirwe's testimony before the tribunal was a perfect match with her statement to the investigator. Her testimony also remained unshaken on cross-examination by Ms. Namala, learned Counsel for the respondent. She maintained that Byamugisha was severely beaten by his fellow soldiers on the orders of Major Nelson Mugerwa. She said that she helped him escape from the clinic and go to Mulago Hospital because he was "in a bad shape".

was overwhelming medical evidence to corroborate $Set.$ There Byamugisha's case. This was presented by Dr. Kalungi Sam of Mulago Hospital.

The medical examination report of the clinic within Mubende barracks dated 12^th January, 2008 reveals that on admission Byamugisha complained of "multiple bruises following assault". Upon examination he was found to be "bleeding from the nostrils and had multiple injuries" and stick marks all over the body".

The medical examination report from Bombo Military Hospital dated 28^th January, 2008 reveals that Byamugisha suffered internal bleeding beneath the skin "on the upper part of the back, shoulder region, right hand abdomen and chest". The diagnosis was "multiple soft tissue injuries secondary to assault".

$\overline{7}$ The medical examination report of Mulago Hospital dated 17^th March, 2008 showed that Byamugisha went there complaining of headache, pain in the left shoulder and back pain. The X-ray report showed "loss of the normal bend of the back" attributed to muscle spasms.

The clinical notes of Mulago Hospital, Out Patients Department (OPD), dated 17^th September 2008 show that Byamugisha complained of frequent headaches. He was diagnosed with "posttraumatic pain".

Only one question was put to Dr. Kalungi by Mr. Musota, learned Counsel for the respondent. It had to do with the X-ray report to which he answered "the X-ray report was stamped and attached".

The complainant's case was sealed by the respondent's agents themselves in their numerous admissions to the Commission investigators.

In his internal report to the Chief MRC dated 1^st April, 2008 titled Report About Alleged Assault/Torture of Pte. Byamugisha Felix by RPs, S/Sgt. Mwesigwa Fred wrote in part:

"The soldier was going to the market with his wife. The soldier had no gate pass. There was a scuffle between Pte. Byamugisha and the RPs..... the fight caused him to run away from the RPs into the

banana plantation. The group of RPs followed him, beat him randomly and he was carried to the Quarter Guard. Byamugisha Felix had bruises and complained of torture. When the doctor examined him he was found with multiple bruises all over the body. He was admitted to hospital and later escaped. Much as the soldier was in the wrong, the RPs used excessive force to arrest him. The allegations by the RPs that they were defending themselves is disproved because over 5 RPs cannot defend themselves against one person. The soldier was assaulted as he had multiple bruises all over his body".

What is contained in this internal memo was exactly what Byamugisha and Atubikirwe told the tribunal, and what the doctors saw on examining Byamugisha. The same information is contained in another internal memo dated 3^rd July, 2008 authored by FO Lt. Wabwire, a UPDF Legal Officer.

In another internal memo by Col. Katirima dated 14^th May, 2009 titled Grave Complaint Against Major Nelson Mugerwa, he (Col. Katirima) wrote in part:

"It is reported that Major Nelson Mugerwa and 2 others of MRC grossly violated and maimed at least 10 soldiers. They should show cause why disciplinary action should not be taken against them".

were acting in the course of their employment as servants of the state. We hold that the respondent is vicariously liable for their wrongful actions.

## (ii) Whether the complainant is entitled to any compensation

Having held as hereinabove, it follows that the complainant is entitled to compensation. Articles 50, and $53(2)$ of the Constitution refer.

In assessing the quantum of damages to be awarded to the complainant, we will consider the extreme physical pain he was subjected to. He was severely beaten with sticks and batons by more than 5 RPs. He suffered injuries all over the body. Some of the injuries especially the head injuries required treatment on admission at Mulago Hospital for more than a Byamugisha suffered nasal bleeding. Rather than give him month. immediate medical attention Major Mugerwa instead ordered for his detention. Byamugisha was carried to the clinic only after his wife threatened to report the incident to the President.

As an act of further humiliation, Major Mugerwa ordered the RPs to strip Byamugisha of his clothes. He was undressed and remained stark naked. Atubikirwe described the embarrassment she suffered as other women and children watched her husband being beaten while naked. Byamugisha

$12$

was a soldier, a husband, a father and son whose dignity was stripped from him that day. The people who saw his nakedness will never unsee it.

The actions of Major Nelson Mugerwa and the RPs he ordered to torture Byamugisha breached not only the UPDF Code of Conduct but also the Constitution. Under Article 221 of the Constitution:

"It shall be the duty of the UPDF and any other armed force established in Uganda....to observe and respect human rights and freedoms in the performance of their functions".

The actions of Major Mugerwa and his RPs were oppressive, brutal, cruel, sadistic, barbaric, dehumanizing, arrogant, reckless, wanton, outright criminal and impossible to justify. This tribunal has a duty to protect human rights of all Ugandans – both civilians and officers, men and women in the armed forces. Our message is $-$ acts of impunity will not be tolerated.

We will further consider that the right to freedom 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 be taken away.

In consideration of all the above circumstances, we consider U. Shs.25,000,000 (Twenty $Shillings)$ Five Million adequate compensation to the complainant. We so award.

## **ORDER:**

- The complaint is allowed. $\mathbf{1}$ . - ordered $2.$ The respondent $is$ $\overline{10}$ pay the complainant U. Shs.25,000,000 (Twenty Five Million Shillings) as general damages for violation of his right to freedom from torture, cruel, inhuman and degrading treatment. - The U. Shs.25,000,000 = will carry interest at $10\%$ per annum until $3.$ 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 Kampala this .... 11th day of February. 2025.

HON. MARIAM WANGADYA

Muton CHAIRPERSON

HON. COL. (RTD.) STEPHEN BASALIZA

COMMISSIONER

HON. LAMEX OMARA APITTA

HON. CRISPIN KAHERU

$B \wedge t$ **COMMISSIONER**

COMMISSIONER

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