The application was brough under the provisions of Article 50 (11) of the Constitution of the Republic of Uganda, 1995 and Section 11 of The Human Rights Enforcement Act, 2019 seeking various declarations and orders.
The gist of the orders sought was that the trial of the two be declared null and void on grounds that at the time of arrest and detention, their non-derogable rights were violated. They also sought compensation, punitive and general damages. The Court consolidated the two applications for convenience since the two originated from the same Criminal Session case 1 of 2022 and are seeking the same reliefs basing on similar or related facts and grounds.
Background of the case
The allegation is that on the 28th day of February 2021, Al and A2 being employed by Uganda Revenue Authority as a customs officer and driver respectively stole USD 410,000 the property of GAK Express Co. Limited. The two deny the charges.
The two accused were tortured through beating, boxing, kicking using metals, wires, kicked in the ribs with combat boots, burning them with hot metals under their feet, chaining their hands and arms behind their backs, dragging them on the floor while pulling the ropes tied in their necks and arms, hitting their toes, ankles and elbows and suspending them in air while tying their necks, legs and arms. It was executed by well-muscled men using weapons such as guns, sticks, batons, metal bars, pliers, chains, ropes and electric wires. They however maintained their innocence as they demanded for the money they alleged to have robbed. They lost consciousness due to prolonged torture.
The alleged torture was meant to compel the accused to confess to the crime of stealing money on the 28th February 2021. Because of torture, they suffered physical and mental anguish including several ailments like acute stomach pain, swelling of legs, feet and arms and paralysis. They were tortured and their bodies became swollen with wounds on the legs, back, hands, ribs and abdomen. They did not receive any medical attention or have access to a lawyer or family members. Further mistreatment went on until they were produced in court after an ordeal of 16 days in detention. they stated that after being released on bail, they sought medical treatment and suffers from paralysis, headaches, hallucinations and general body weakness.
From the several affidavits and attachments of both sides, the following issues raised for determination; whether A1 and A2 were subjected to torture. and if so, whether the non-derogable rights of Al and A2 were violated and what remedies if any.
Consideration of the petition
Justice Gidudu first resolved the preliminary objections raised by the respondent and stating that the objection in regard to proof of medical had been dealt with. That it is not a legal requirement in cases of Human Rights where torture is the subject of inquiry. Be that as it may, he found that medical evidence adduced by both applicants had not been scientifically challenged. He stated that, “if blunt trauma can leave such torture marks as seen on the feet, arms. buttocks, legs and the back in the photos tendered as evidence then the torture sessions were severe.”
Furthermore, was an objection on an issue of late filing a supplementary affidavit and another in rejoinder without leave of court. Justice Gidudu stated that, it was true that he gave the parties time lines to file submissions. But these timelines were administrative and not amounting to a court order that follows a trial. He further stated that extension of time is strictly for time imposed by the Rules or a Statute. Administrative timelines can be extended by ordinary letter request. Besides, section 6(5) of the Human Rights (Enforcement) Act, 2019 exempts suits under the Act from technicalities. Therefore, cases of Human Rights are not subjected to the strict Rules of Procedure and Evidence. Courts are mandated to examine substance and not mere form when dealing with fundamental human rights of citizens. The objection was not sustainable.
On the contention as to whether the non-derogable rights of A1 and A2 were violated and what remedies if any, Justice Gidudu stated that before deciding if the applicants have proved allegations of torture which is a violation of their non-derogable rights, he felt compelled to interrogate the circumstances surrounding their arrest and charging in court. This would place the matter into proper context. He therefore reviewed species of circumstantial evidence require examination by court and confirmed that allegations made by the applicants in regard to their arbitrary arrests and subsequent torture to be true. The Judge stated, “the Applicant’s non-derogable rights protected by Article 24 and guaranteed by Article 44 (a) of the Constitution of the Republic of Uganda were threatened, infringed upon and violated.” The injuries sustained were gruesome to say the list and confirms that there was torture of A1 and A2. Their prosecution raises more questions than answers because of the manner in which they were treated before being brought to court.
It was further noted that, the enactment of the Human Rights (Enforcement) Act, 2019 with specific provisions which seem to have enacted the holding of courts in enforcing Constitutional provisions that protect and guarantee Human Rights has rendered the torture of suspects if proven to result in their acquittal no matter how serious the charges are. Our duty as courts is to enforce compliance by all agencies of State to respect and observe human rights of suspects who after all are presumed innocent until proved guilty.
The Court held that, the applicants demonstrated that their non-derogable rights and freedoms were infringed upon when they were mercilessly battered in the hands of the military that should have had no role in purporting to investigate a criminal case of Abuse of office and theft. The trial judge declared their trial in criminal session case 1 of 2022 a nullity and acquit them pursuant to section 11(2) of The Human Rights (Enforcement)Act, 2019.
In conclusion Justice Gidudu allowed the application and found that the applicants were subjected to acts of torture and their non-derogable rights were threatened, infringed and grossly violated. The acts of torture of A1 and A2 are neither justifiable nor defendable. The following orders were made; The trial of A.1 and A.2 in criminal session case 1 of 2022 was declared a nullity. Both applicants were acquitted pursuant to section 11(2)l of The Human Rights (Enforcement) Act, 2019; an award of UGX 200,000,000 as general damages and another UGX. 50,000,000/= as punitive damages to A1; an award of UGX 100,000,000 as general damages and another UGX. 50,000,000/= as punitive damages to A2