[2019] UGHRC 15


## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT KAMPALA COMPLAINT NO UHRC/61/2008 S/SGT (Rtd) ONENCHAN GODFREY::::::::::::::::::::::::OMPLAINANT $-$ AND $-$

## ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: DECISION

*(Before: Hon. Commissioner Meddie B. Mulumba)*

Onenchan Godfrey (the Complainant) a resident of Jupakeno Village, Mbaro East Parish, Nyaravur Sub County, Padyere County, Nebbi District alleges that on $30/05/2007$ while on duty at Mbuya Military Barracks he was arrested by Violent Crime Crack Unit (VCCU) operatives on allegations of being in possession of an illegal firearm. That upon arrest, he was taken to RRU - Kireka where he was beaten by the RRU operatives with batons and kicked all over the body especially on the stomach. That the operatives were asking him to produce a gun allegedly in his possession. He further

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alleges that he was transferred to Makindye where he was detained in a safe house for three and a half months. That he was thereafter taken back to RRU where he spent three days before being taken to Jinja Road Police Station and consequently produced in Court.

The following issues were framed for determination:-

- I. Whether the Complainant's right to personal liberty was violated? - Complainant' $s$ right to $freedom$ $from$ II. Whether the torture. cruel, inhuman degrading treatment $\alpha$ r $\overline{or}$ punishment was violated? - III. Whether the Respondent is vicariously liable? - remedies available the $t_0$ IV. Whether there are anv Complainant?

The Complainant testified in person and called two witnesses Kisembo Habibu - CW I, Kalungi Sam - CW II and Omul Arthur Franco - CW III. This was close of the Complainant's case. The Respondent did not call defence witnesses. When the matter came up for defence case, Namala Elizabeth Deborah -State Attorney informed the Tribunal that letters had been written to the Special Investigation Unit and the Commandant RRI for instructions to defend the matter but there had been no response to the letters. Learned State Attorney prayed to file written submissions which have not been filed todate.

Although the Respondent did not call defence witnesses, as per Sections 101 - 102 of the Evidence Act Cap 6, the Complainant still bears the burden to prove the allegations against the Respondent on a balance of probabilities.

## RESOLUTION OF ISSUES.

## ISSUE I: Whether the Complainant's right to personal liberty was violated?

The Complainant's testimony is that he is a retired UPDF Soldier. On 31/05/2007 while on duty at Mbuya Army Barracks, 12 VCCU Operatives who were under the command of a one Major Charles arrested him on allegations of being in possession of an illegal pistol. Upon arrest he was asked to produce a pistol allegedly in his possession. He was taken to RRU Kireka where he was detained for one and a half months in a small underground cell with about 100 other suspects. He was taken to Makindye Military Barracks where he was then further detained for an additional three and a half months before being released. He could not recall the exact date he was released. Upon release from Makindye Military Barracks

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taken back to RRU Kireka where he was further he $\operatorname{was}$ detained for 3 days before being produced in Court.

In cross examination he stated that he was arrested on $31/05/2007$ by VCCU operatives. The operatives informed him that they were from VCCU and that they had come to arrest He was detained at Kireka RRU Headquarters for one him. month. Before being detained his clothes were removed and he remained in a vest and a pair of shorts. Other inmates were in clothes and he was the only one who remained half dressed. He was transferred to Makindye Military Barracks after $1$ ½ months in detention. He was detained at Makindye Army barracks for about 3 % months and during that time he was not taken to Court. He was then taken back to Kireka RRU Headquarters and then transferred to Jinja Road Police Station before being taken to Nakawa Court where he was charged and remanded to Prison.

CW I testified that he is a retired UPDF Sergeant. From 2007 up to 2008 he used to work with the Complainant at Mbuya Army Barracks. On $31/05/2007$ he saw some people arresting the Complainant. He does not know where the Complainant was taken after arrest. He saw the Complainant in hospital after

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one week. He went to Makindye Army Barracks to visit the Complainant was not able to see him.

In cross examination he stated that he saw a group of people arresting the Complainant. Upon seeing the Complainant being arrest, he went to their supervisor and inquired from him why the Complainant was being arrested. The supervisor only replied that "they have taken him". The Complainant later informed him that he had been detained at Makindye Army Barracks.

III testified that the Complainant is his biological $\mathbf{C}\mathbf{W}$ brother. In the $1^{st}$ week of June 2007 he received a phone call from a lady who informed him that she works with International Committee of the Red Cross (ICRC). The lady informed her that she had visited Kireka Police Station and had found the Complainant in detention. On the following morning, he went to Kireka Police Station and found him in detention. He was allowed by the policemen to talk him for $5$ The Complainant informed him that he had been minutes. arrested on allegations of committing an offence by force of He visited the Complainant three times in detention. arms. When he went to Kireka Police Station on the $4^th$ time, he was informed that the Complainant had been transferred to

$in$ The Complainant spent almost 1 ½ months Makindye. He later went to detention at Kireka Police Station. Makindye Military Barracks and found the Complainant in detention. He kept visiting him every week for three months. The Complainant spent 3 ½ months in detention at Makindye Military Barracks. The Complainant was later taken back to Kireka police Station. The Complainant was later produced before Nakawa Court.

The right to personal liberty is guaranteed under Article $23(4)$ (b) of the Constitution of the Republic of Uganda provides that a person who is arrested or detained on suspicion of having committed or about to commit an offence under the laws of Uganda, shall if not earlier released, be brought to court as soon as possible but in any case not later than 48 hours from the time of his or her arrest. See: the African Charter on Human and Peoples' Rights Article 6, The Universal Declaration of Human Rights 1948 Article 6; the International Covenant on Civil and Political Rights 1966 Article 9.

In absence of any documentary evidence like the police lock up Register and a release on bond in order to assist the

Tribunal in determining precisely when the Complainant was booked in and out of custody, the Tribunal can rely on the oral evidence adduced by the Complainant and his witnesses. See: Kvalimpa Godfrey and Attorney General UHRC/145/2005

CW I saw a group of people arresting the Complainant and saw $\mathbf{C}\mathbf{W}$ $\mathbf{III}$ visited later in hospital. the one week him in detention three times at Kireka Police Complainant Station. He stated that the Complainant was in detention for almost 1 ½ months. CW III also visited the Complainant in detention at Makindye Army Barracks every week for three months. He stated that the Complainant spent 3 $\frac{1}{2}$ months in detention at Makindye Army Barracks. The testimony of CW III remained unshaken during cross examination.

Any deprivation of personal liberty outside the prescribed instances under Article $23(4)$ (b) of the Constitution results in a violation of the right to personal liberty. In the instance case the Complainant was in detention at Kireka Police Station for 1 ½ months and at Makindye Army Barracks for $3\frac{1}{2}$ months. In total he was in detention for a total of Therefore his right to personal liberty $as$ $150$ davs. protected under Article 23 $(4)$ of the I995 Constitution of

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the Republic of Uganda was infringed upon bv the Respondent's agents for 148 days.

Issue I is therefore answered in the affirmative.

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

The Complainant's testimony is that on $31/05/2007$ while on duty at Mbuya Army Barracks he was arrested by 12 RRU operatives on allegations of being in possession of a pistol. Upon arrest the operatives who were using batons and sticks begun beating him and also kicking him while asking him to produce the pistol. He was thereafter put in a cell half dressed in only a pair of shorts. While in detention he was visited by CW III who also brought for him some medicine for treatment. He was detained in a small cell with 100 other suspects for $1$ ½ months and by the time he was transferred to Makindye Military Barracks he was sick from stomach pains. He was urinating blood at times and also had general body pain. He was not subjected to beatings at Makindye Military Barracks but he was sick and almost died. He was later taken to Mbuya Hospital for treatment.

In cross examination he stated that he was arrested by operatives from VCCU on allegations of being in possession of a gun. Upon arrest he was beaten by a joint group of about 50 police and military men. He was detained half naked in a cell with other suspects while other suspects were fully clothed.

CW I testified that he saw the Complainant being arrested by a group of people. He saw the Complainant in hospital after one week. The Complainant was in a bad condition.

In cross examination he stated that upon the Complainant being brought back to Mbuya Army barracks, the Complainant was in a bad condition.

CW II testified that he is a medical doctor attached to Mulago Hospital since 2006. He interpreted Exhibit I which is medical report from the African Center for Treatment and Rehabilitation of Torture Victims (ACTV) authored by Dr Muwa Paul. The Complainant was examined on $22/09/2008$ at ACTV. Upon examination, the Complainant had abdominal pains, pain of the left knee, nightmares and flight attacks which are associated with pain attacks. The examining doctor noted

that the Complainant had general body weakness and was restless. There was a painful and dark swelling over the front of the left leg. He was walking with a limp due to pain enlisted from the abdomen. The diagnosis was soft tissue injuries. He also had depression, post-traumatic stress disorder. He also had pain of the abdomen and lower limb with permanent disability at 20%. This can he performance at 20%. That means that his body could only perform up to 80%. This is the disability sore you look at whole body performance. That is the total function of the body. He was reported to continue having pain and the recommended treatment was analgesics and anxiolytics with are painkillers, physiotherapy and trauma counselling.

Upon cross examination, he stated that he could not estimate how long the Complainant spent with the injuries before going to ACTV for treatment. There is no way a medical doctor can determine how long a scar will last. He believes Dr Muwa Paul authored the report since his signature appears on all parts of the medical report.

$\mathbf{C}\mathbf{W}$ $III'$ s testimony $is$ that the Complainant is his biological brother. In June 2007 he visited the Complainant in detention at Kireka Police Station. The Complainant was

in serious pain and needed some medicine. The Complainant informed him that during arrest, he had been kicked in the stomach. He observed that the Complainant was stressed and had been beaten. He went home and after $3 - 4$ days, he took some painkillers for the Complainant in detention. The Complainant was later transferred to Makindye Military Barracks and he kept visiting and taking some medicine for the Complainant. The Complainant's condition keep improving because he was taking strong painkillers.

In cross examination he stated that he did not see the Complainant being kicked. The Complainant informed him that he had been kicked and he believes the Complainant because he (the Complainant) was walking with a limp. He took some strong painkillers for the Complainant in detention which would help heal some internal injuries.

The non-derogable right to freedom from torture, cruel. inhuman or degrading treatment or punishment which $is$ protected under Articles 24 and 44 (a) of the Constitution the Republic of Uganda 1995 enshrines one of the $\overline{\text{of}}$ fundamental values of democratic societies. The same right is protected under Article 5 of the Universal Declaration of Human Rights 1948; Article 7 of the International Covenant

on Civil and Political Rights 1996; Article 5 of the African Charter on Human and people's Rights 1981. Torture is extreme physical pain caused by someone or something, especially as a punishment or as a way to make someone say something or do something. See Ibongo Florence and Attorney General UHRC/213/2003; Kwezi Pascal and Attorney General UHRC/ $569/2004$ . There are three essential elements;

- intentional infliction of The $\dot{1}$ . severe mental $\alpha$ r physical pain or suffering; - ii. The purpose of the action or treatment meted out was information or a confession. for to obtain $\alpha$ r intimidation. coercion. for $\overline{or}$ any punishment, reason based on discriminating the victim; - iii. By or with the consent or acquiescence of the state authorities;

From the evidence on record the Complainant was arrested by 12 RRU operatives who were under the command of a one Maj Charles on allegations of being in possession of a pistol. During arrest he was beaten in order to produce the pistol. He was detained in a cell with 100 other suspects while half naked in only shorts. The Complainant clarified that he was not subjected to acts of physical torture while in detention at Makindye Army barracks. CW III did not see him being beaten. He visited the Complainant in detention at Kireka Police Station. He observed that the Complainant was in serious pain and took for him some strong painkillers. He also visited the Complainant in detention at Makindye Army Barracks and kept taking some medicine for the Complainant. The beatings inflicted upon the Complainant to produce the gun constituted acts of physical torture. Although the complainant was suspected of being in possession of a pistol, other lawful methods of interrogation should have been employed to recover the pistol from him. They were calculated and international acts. The act of detaining him in cells while half naked with other suspects are degrading treatment. 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.

I therefore hold Issue II in the affirmative.

## ISSUE III: Whether the Respondent is vicariously liable?

I now turn to Issue II, the Complainant testified that he was arrested on $31/05/2007$ by 12 RRU operatives who were under the command of a one Maj Charles. He was subjected to

acts of physical torture and detained at Kireka Police Station and Makindye Army Barracks by the Respondent's servants. RRU is a known department of the Uganda Police Force to which the identified officers belonged. I find that operatives were acting the course of their **RRU** the employment. See: Hakizimana Francis and Attorney General $UHRC/10/2009$ . The respondent failed to discharge the burden of proving the opposite. See; Nakalema vs Michelistanos (1956) 22 EACA 172; Kyalimpa Godfrey and Attorney General UHRC/145/2005.

I therefore hold Issue III in the affirmative.

ISSUE IV: Whether there are any remedies available to the Complainant?

The Complainant is entitled to a remedy which may include compensation. See; the Universal Declaration of Human Rights (UDHR) Article 8; Articles 50 (1), 53 (2) (b) and (c) of the Constitution of the Republic of Uganda 1995. Having held Issues I, II and III in the affirmative, the Complainant is entitled to a remedy.

It is very unfortunate that the UPDF which has a General Court Martial at its disposal decided to treat their own in such a manner. Instead of dealing with him directly they handed him over to RRU operatives where he was jointly tortured and after 3 % months in detention at RRU decided to take him to a military barracks before he was taken before Court.

for the assessing compensation to the Complainant In violation of his right to freedom from torture, the tribunal $\overline{of}$ torture consideration the nature $\alpha$ r into takes maltreatment and injuries sustained and the impact on his this right is absolute. See: life and the fact that Isabirye Kiwule and Attorney General UHRC/J/35/2003. The Complainant testified that as a result of the beatings he stated that $\mathbf{C}\mathbf{W}$ he $saw$ the had general body pain. $\mathbf{I}$ Complainant in hospital one week after he had been arrested. The Complainant was weak and in a bad shape. CW III visited the Complainant in detention at Kireka Police Station and at Makindye Military Barracks. Exhibit I indicated that the Complainant had a permanent disability of 20 %. He used to take strong pain killers for the Complainant to help treat the internal injuries. I accordingly award the Complainant

a sum of UGX 8,000,000/= (Uganda Shillings eight million only) as general damages for the violation of his right to freedom from torture and degrading treatment as protected under Articles 24 and 44 (a) of the Constitution of the Republic of Uganda 1995.

In determining the amount of compensation for violation of his right to personal liberty. I take into account the length of detention and the conditions of detention. See: Okello Martin & $3$ others and Attorney General UHRC/GLU/22/2006. The Complainant was in illegal detention for 148 days before being taken to Court. His illegal detention for 148 days was excessive. I accordingly award the Complainant a sum of 29,600,000/= (Uganda Shillings twenty nine million six hundred thousand only) as general damages for violation of his right to personal liberty.

## **ORDERS**

The Tribunal hereby orders as follows:

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay the Complainant Onenchan Godfrey 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 $as$ protected under Articles 22 and $44 \quad (a)$ $\mathsf{of}$ the Constitution of the Republic of Uganda 1995.

- 3. The Respondent is ordered to pay the Complainant -0nenchan Godfrey $\mathbf{a}$ $\quad\text{ of }\quad$ 29, 600, 000/ $=$ (Uganda sum Shillings Twenty Nine Million Six Hundred Thousand Only) as general damages for violation of his right to personal liberty. - 39, 600, 000/ $=$ 4. The $\qquad \qquad \text{said}$ total $sum$ $\circ$ f **UGX** (Uganda Shillings Thirty Nine Million Six Hundred Thousand $(0 \text{ n})$ shall carry interest at 10% per annum from the date of the decision until payment in full.

5. 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.

$\mathcal{S} \subset \mathcal{S}$ Dated at KAMPALA this ....................................

mi Linha MEDDIE B. MULUMBA

PRESIDING COMMISSIONER