[2021] UGHCACD 14

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA ANTI-CORRUPTION DIVISION HOLDEN AT KOLOLO MISC. APPL 26 AND 31 OF 2020 (Arising from criminal case 75 of 2019) 1 . PAUL WANYOTO MUGOYA ....................................

2. MUGISHA PATRICK Alias KANTU ....................................

**VRS**

#### 1. SGT. OUMO JUSHUA 10

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... RESPONDENTS. 2. ATTORNEY GENERAL ...........

### **BEFORE: GIDUDU, J**

### RULING.

- The two applicants filed miscellaneous applications 26 and 31 of 2020 under the 15 provisions of The Human Rights Enforcement Act, 2019 and the Rules made there under (SI 2019 No 31) seeking various declarations and orders. I decided to consolidate the two applications for convenience since the two originated from the same **criminal case 75 of 2019** and are seeking essentially the same reliefs based on the same grounds and facts. 20 - The 1^st applicant is A7 in criminal case 75 of 2019 whilst the $2^{nd}$ applicant is A4. The two together with 7 others are charged with various crimes such as obtaining money by false pretence, cheating and money laundering. They are accused of defrauding one **Ssuuna Dauda** of a total of $1,270,000,000$ = by false pretence. - The two applicants, specifically moved court under Section 11 (2) of the Human 25 Rights (Enforcement) Act, 2019 seeking the court to stop the trial, declare it a nullity and acquit them because of the violation of the non derogable rights of A4, Mugisha Patrick alias Kantu Allan. The court stayed the criminal case to determine the allegations contained in the motions, the accompanying affidavits and annextures. 30

Ihe backgound according to the summary ofthe case, is that belween April and July 2016, Al to 46 detmuded one Ssuuna Dauda, a businessman of a rotal ol UGX. 1,270,000,000/= which they obtained in various instalments by purpoding to hclp A2 to get his UGX. 18.500,000,000/= which was in DFCU Brnkunfrozen

by Brnk of Uganda. This mone) (1.27 billion) was to orcr bribes 10 officials in the Bank of Ug da to unfteeze lhe money which A2 claimed to be his be.eilv compensation from UNRA.

The second applicanr, ,{4 Mugisha Pahick alias Allan Kantu in his affidavir swo.n on 24rh July 2020, deponed thal he \as derained and subjected to torture by the l" respondent. Todure was administered by inseding orpurling slicks bctwecn fingeB and lighlly tied together rvith rubber bands io infllcl serious pain in act known

'Ihe toflure was inrended ro compel the 2d applicanl ro confess to crimes he did not commit and that becausc of this torrure. he was tbrced 10 sell his land comprised in Busiro Block3l2 Plot E:U land ar Kalambilo raise money which the l'' respondent uas demandin8.

On the other hand, the lsr applicant, Waryoto Prul Mugoya (A7) deponed in his affidavit of 3'r July 2020 rhar he {as approached by one Hassan Miryrb., ^a police ofUcer who inlroduced him ro the l" respondenr. 'Ihey handed him ^a duplicate ccnificale of title 1br land comprised in Busiro Block 312 Plot 8,ll claiming thal the .egislered owner one Allan Ka.tu who was in police cusrody wanled a quick buyer so he could solve his problems. The land w6 offered at ^a good price due 1o the urgency ,A4: needs.

ln mother alldavit swom by Katende haac, it was srared that he was a tbmer flying squad operative detailed by PaulWanyolo to set up aconveBation involving the l'l.espondent to confirm tortDre ofA4 by lhe police.

ln a supplementary a\*ldavir sworn on 61h July 2020 bl' Emuye fraDcis, an ICT Frcel ce Consuhanr, he slated thal he was co.versanl wirh an audio recording from a Sony Voice Recorder ICD-PX470 1155831 on which he caried our digilal

forensic examinarion. Ile stated in his.epon thar he imaged the recording and concluded that rhe Paul Wanyoto was known to the l, respondent and that rhe charges ag.inst him werc maliciously prefered ailer the deal to sharc moley went bad. He also slaled thataccordinS to hih there uas hr(ure ofsuspects.

The 1^st respondent in his affidavit sworn on 29^th July, 2020 denied all the averments in the applications and stated that he was not the one who arrested A4 Mugisha Patrick. He denied torturing A4 or witnessing torture by other police officers. He deponed that what is contained in the application is tainted with material falsehoods. He denied participating in a conversation contained in the audio recording. It was his evidence that his voice was fabricated to taint his name and image.

Mr Jude Byamukama appeared for the applicants whilst the 1^st respondent appeared in person. The $2^nd$ respondent opted out by conduct.

Learned counsel for the applicants in his submissions essentially repeated what the 10 applicants and their witnesses had deponed in the affidavits. In the same vein the 1^st respondent repeated what is contained in his numerous affidavits responding to the allegations against him.

#### **Issues** 15

- 1. Whether the 2^nd applicant Mugisha Patrick alias Kantu Allan was tortured? - 2. If so, whether such torture violated his non derogable rights so as to render the trial a nullity under Section 11(2) of the Human Rights (Enforcement) Act, 2019

### Was the 2^nd applicant, Mugisha Patrick alias Kantu Allan tortured? 20

Fundamental, other rights and freedoms are enforceable under section 3 of the Human Rights (Enforcement) Act, 2019 The victim, any person or organisation have locus standi to apply for redress. The two applicants are therefore properly before court.

### Enforcement of human rights and freedoms 25

(1) In accordance with article 50 of the Constitution, a person or organisation who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened may, without prejudice to any other action with respect to the same

matter that is lawfully available, apply for redress to a competent court 30

### in accordance with this Act.

The complaint here is that the $2^nd$ applicant was tortured physically by inserting sticks between his fingers and pressing them to exact serious pain. Further, it is alleged by the $2^nd$ applicant that he was held for about 30 days in police cells before he was taken to court.

Implicit in these allegations is that A4's right to *freedom from torture and cruel*, *inhuman or degrading treatment or punishment* was violated by the infliction of pain and incarceration in custody beyond 48 hours. These rights are inviolable and protected under Article 44 of the Constitution as shown below.

#### 44. Prohibition of derogation from particular human rights and 10

freedoms.

Notwithstanding anything in this Constitution, there shall be no derogation

from the enjoyment of the following rights and freedoms—

(a) freedom from torture and cruel, inhuman or degrading treatment

### or punishment; 15

(b) freedom from slavery or servitude;

## (c) the right to fair hearing;

### (d) the right to an order of habeas corpus

If proved, the court would have to apply the provisions of **section 11(2)** of the Human Rights (Enforcement) Act, 2019. The effect of which is to declare the 20 trial a nullity and acquit the accused persons. The provisions applicable are cited below.

# 11. Derogation from non-derogable rights and freedoms

(1) It is an offence for a person to derogate from a non-derogable

#### right and freedom guaranteed under the Constitution. 25

(2) Whenever, in any criminal proceeding-

- (a) it appears to the judge or magistrate presiding over a fral, - (b) it is brought to the attention of the competent court; or

(c) the competent court makes a finding,

that any of the accused person's non derogable rights and freedoms have been infringed upon, the judge or magistrate presiding over the trial shall declare the trial a nullity and acquit the accused person.

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It was submitted for the applicants that as a result of torture and long detention, Mugisha Patick the 2nd applicant was forced to sell his land, to A7. It was submitted that torture is a **non derogable right** and as such the applicant should be unconditionally set free under Section 11(2) of the Human Rights (Enforcement) Act.

Further, it was submitted that in view of the provisions of section $11(2)$ of the **Human Rights Enforcement Act**, the charges against Mugisha Patrick cannot stand and that since Wanyoto's charges arise from the circumstances of **torture** of Mugisha Patrick, charges against him must collapse.

The 1^st respondent denied allegations of torture and contended that he did not arrest 15 the 2^nd applicant. He denied sourcing the 1^st applicant to buy land from the 2^nd applicant. He also denied being in the recorded conversation with one Katende Isaac and Hassan, wherein he plotted to charge the 1^st applicant out of malice.

He attributed the arrest of the 2^nd applicant to ASP Nuwahereza Hillary on 4^th August 2018 and contends that this application is intended to evade trial.

Fundamental rights and freedoms of the individual provided for under Article 20 of the Constitution are inherent and not granted by the state. They are required to be respected, upheld and promoted by all organs and agencies of government and all persons.

Article 24 of the Constitution guarantees freedom from torture, cruel, inhuman or 25 degrading treatment or punishment. This guarantee is absolute and prohibitory under Article 44 (a) of the Constitution.

The Prevention and Prohibition of Torture Act 2012, defines torture in Section 2 as any act or omission by which severe pain or suffering whether physical or mental is intentionally inflicted on any person for the purpose of obtaining information or confession or punishing that person for an act he or she or any other

person has committed or is suspected of having committed or of planning to commit etc.

Section 3 of the Prevention and Prohibition of Torture Act, 2012 provides for prohibition of torture and the enjoyment of the right to freedom from torture shall be non derogable.

The 2^nd applicant contends that physical pain was inflicted upon him so as to obtain money from him in exchange of his freedom. As a result, he was forced to sell his property to the 1^st applicant at a giveaway price. After his release on bail, he contends that he approached the 1^st applicant for a fair price and after reaching an agreement and reselling the property, the 1^st respondent who was actuated by malice wanted a share of the extra money. After failing to get more money the 1^st respondent chose to treat the $1^{st}$ applicant as a criminal yet he ( $1^{st}$ respondent) had acted as a broker for the sale of the property.

The burden of proof lies upon the applicants to prove allegations of torture. For a 15 court to apply the provisions of section $11(2)$ of the Human rights (Enforcement) Act, 2019, there should be credible, believable, verifiable and proven evidence that a person's non derogable rights and freedoms have been infringed upon. It is a serious matter to declare a trial a nullity and acquit the accused. In a away the court should be satisfied that on the evidence adduced, 20 fundamental Rights and freedoms that are non derogable have been violated or infringed.

The 2^nd applicant, Mugisha Patrick, alleges that he was subjected to torture by inserting sticks between his fingers and tying them together to inflict pain in an act known as "baibbuli"

Severe pain or suffering is defined in section 2 of the Prevention and Prohibition of Torture Act, 2012 as prolonged harm caused by or resulting in intentional or threatened infliction of physical pain or suffering.

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It was incumbent upon the 2^nd applicant, A4, to adduce medical or physical evidence to demonstrate the effect the alleged torture had on his hands or his mental condition. No medical assessment or report was filed for my benefit. An applicant cannot just allege torture and ask court to find in his or her favour. There should be physical, mental or psychological injury capable of medical assessment to satisfy the court that there was torture.

Indeed, if torture is proved to the satisfaction of court, the court would be compelled to offer compensation and order the prosecution of the offender. See sections 9(3) and 11(3) of the Human Rights (Enforcement) Act, 2019.

I was asked to consider evidence of the audio recording contained in annextures $5$ "C" and "D" to the affidavit of the 1^st applicant to confirm torture and malice in this case. Emuye Francis, an ICT Freelance Consultant by profession stated that he carried out a digital forensic examination of the recording. He made a report which is annexture "D" wherein he reported that he imaged the recording and concluded that the Paul Wanyoto was known to the 1^st respondent and that the charges against Wanyoto Paul were maliciously preferred after the deal to share money went bad and that there was torture of suspects.

The 1^st respondent denied the voice in the audio recording attributed to him. He argued that the participant in the audio was imitating his voice. He insisted that he was not a participant in the conversation and insisted that the application is full of lies and should be dismissed.

The audio was played in court. It runs for 26 minutes. It is a casual conversation between people familiar with each other. The subject of discussion is a strategy to fix the 1^st applicant by slapping charges against him to pay back for a deal gone bad. A voice attributed to the 1^st respondent boasts about using his office and relationship with the prosecutors to slap charges against the 1^st applicant (Wanyoto) as an act of malice. The speaker boasts of his trickery to embarrass the 1^st applicant in his profession as a lawyer. It shows how well the speaker knows the 1^st applicant's strengths and weaknesses.

- The audio evidence focuses on the property bought by the 1st applicant. It also 25 reveals malice towards the 1st applicant (Wanyoto). However, it does not reveal evidence of torture of the 2^nd applicant (A4). A voice attributed to the 1^st respondent avoids talking about torture of the 2^nd applicant every time he is prompted to do so. - I have had sufficient opportunity to listen and hear the 1^st respondent speak in court 30 in his submissions opposing the application. I have also listened to the audio recording which runs for 26 minutes. The audio speaks about matters relating to the charges preferred in **criminal case 75 of 2019**. It dwells on matters canvassed

in lhis application regardi.g the p.operly lhal the l"' applicant boughl from the 2'i

My conclusio. h rhat rhe voice in the audio is thar of Sgt Oumo. the |' rcspondenl. Thcrc is no doubt about tha1. All circumslances iresistibly pointtolhe s I'r respondenl as a prolagonisl in the audio. What he promised 10 do in the audio happened. This is no coincidence. I believe the audio recording was genuine- The l'' respondent s denials that he was not the one recorded cannol be lrue. He was put on the spot in the audio. It rlas his t.ue soprano voicc- a lype of clasical female sioging voice. I1 tras consistenl with his frcc spccch. There was no attempt ro imilale his voice for fie enlirc 26 minutes.26 minutes were 1o.8 enouSh 1br the

coun to assess that therc rls no imitalion of S81 Oumois soprano voice. He was

The evidence present.d through the audio re.ording falls shor of conoborating the torlure allegalions put fonard by the applicanrs. On the conrrary i! shows tha! the rs charges prefered against the l'r applicant are an afienhoughr actuated by malice. It rcvealed the undeNorld of some investigalo6 in mdufacturing evidence againsr people they disagree with.

Io conclusion, thc evidence produced in court, consisting ofaf|davic. annexures and an audio recordiig does no! prove alleSations of torlure inflicted on ,A4 ,o Mugisha Patrick. The applicanrs cannot invokc the provisions of section 1r(2) of the Human righls (Enforcement) Act,2019lo nullify the rrial. I have not been peBuaded to nullify the lrial on the basis of elidencc adduced. Most arests invariably involve discomfoft to the suspects but such accused should dehonstrarc to court that their non d.rogable rights have been rramplcd upon and it would be ,5 unfair to standbial. I resolvc the fitst isue in the neglrivc.

This issue resolves the second issue. there was no sufllcienl proof of iorture tend.r.d 1o cause the acquiltal ofthe Accused pe6ons.

But beforc I take lealc ofthis malter, I would Iike to expres my concem abour the manner in which invesligators deal {irh cases involving money and exhibils before 30 deciding to charge suspects in coun. Ihee is stong evidence to prove that charSes agains! lhe lr'applicant scre slapped upon him in bad failh. I am sarisfied rhat the l''.espondenl, Sg1 Ouno has abused his mandare as an invesligator ro causc charges ro be pretered against a bulq of propefly uhcre he was a broker. r{c brokered deals !o dispose ofexhibits and urned around ro scek the arest ofone of

If the I'r applicant had broughl this application under ihe provisions of the Judicature Act and cired the DPP as respondenr, he could have obrained an appropriate remedy which I cannot grdt nou because I have nor heard the DPP i. reply.

- s There is no poinl in depadng from the original charges of obtaining money by false prelence. This applicarion has exposed the criminality that Soes on behi.d the scenes befo.e some people are charsed in coun. Ihe DPP has dhcretio. to decide on who lo charge in coun but malice or bad fath should never part of rhat - 1o The office oflhe DPP should be above pety machinations by its invesligatoB ^d should supeNise them instead ofbeing influenced by them as S81. Oumo boasted in the audio recordi. A. This wol]ld ensure that rriak are held speedily unlike in the curent case wbere rhe ftain trial has sralledjusr because S8r Ouma has influenced the addition ofhis "enemies" to the case. Il is a big shame. - 15 The application fails. No order as to cosls. The DPP should focus on the tial of peBons lhat are alleSed to have defmuded Ssruna Dauda ofhis money. The fiehts investi8atoB such as Sgt Oumo are hali.g with people he meets as he sells off e\hibil' is compromLrng rie nregnr) or rhe-dinca.e.

JTIDGE,

l0'I February, 2021