Wakilii

Kapel Bukuny v Attorney General [2016] UGHRC 29

Tribunal · 2016 Complaint Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Human rights complaint before the Uganda Human Rights Commission Tribunal alleging torture by UPDF soldiers
Decision
Complaint allowed; complainant awarded damages and interest

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that UPDF soldiers from Napumpum army barracks violated the complainant's constitutional right to freedom from torture when they severely beat him during a cordon and search operation, causing him to lose consciousness and suffer severe injuries. The Attorney General was held vicariously liable for the actions of the soldiers acting in their official capacity. The complainant was awarded UGX 3,000,000 in general damages plus interest at 10% per annum.

Outcome

Complaint allowed; complainant awarded damages and interest

Facts

On 31 January 2009, UPDF soldiers from Napumpum army barracks conducted a cordon and search operation in Napumpum Trading Centre. The complainant, who was visiting his grandmother and had stayed overnight after delivering grass, was among seven men arrested. The soldiers beat the detainees with batons and gun butts on the way to the barracks. At the barracks, they were held in a uniport overnight. The following morning, the soldiers called them out one by one and severely beat them while demanding confessions about possession of guns. The complainant was beaten for approximately three hours, kicked on his chest and toes, and had soldiers walk on his body while he lay on the ground. He bled from his mouth and nose and lost consciousness. He was taken to Napumpum Health Centre II in an unconscious state, where he was diagnosed with severe trauma to the right kidney. He was referred to Kotido Health Centre and later spent six months receiving treatment at Matany before being discharged.

Issues

  1. Whether the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by State agents.
  2. Whether the Attorney General (Respondent) is liable for the violations.
  3. Whether the Complainant is entitled to any remedies.

Orders

  • The complaint is allowed.
  • The Respondent to pay the sum of Uganda Shillings 3,000,000/- as general damages for the violation of the Complainant's right of freedom from torture or cruel, inhuman or degrading treatment or punishment.
  • Interest at the rate of 10% per annum to be paid on the total amount of Shs.3,000,000/= calculated from the date of this decision until payment in full.
  • Each party to meet their own costs.
  • Either party may appeal to the High Court of Uganda within thirty (30) days from the date of this decision if not satisfied with the decision of this Tribunal.

Rules and key headnotes

Human Rights — Freedom from Torture — Absolute Prohibition — Non-Derogable Right
The right to freedom from torture or cruel, inhuman or degrading treatment or punishment is absolutely prohibited under international, regional and national human rights law and is non-derogable under Article 44 of the Constitution of Uganda, meaning it cannot be suspended even in circumstances of war, threat of war, internal political instability or any other public emergency.
Human Rights — Torture — Definition and Elements — Four Ingredients Test
To establish torture under the Convention Against Torture 1984, four elements must be proved: (1) the action caused the victim severe pain or suffering, whether physical or mental; (2) the pain was intentionally inflicted; (3) the purpose was to obtain information or a confession, or for punishment, intimidation, coercion, or discrimination; and (4) the action was carried out by, or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity.
Human Rights — Torture — Burden of Proof — Custody in Good Health Principle
Where an individual is taken into custody in good health but is found to be injured on release, it is incumbent on the authorities to provide a plausible explanation as to the cause of the injury, failing which a clear issue arises and the authorities must be held responsible.
Tort Law — Vicarious Liability — State Liability for Acts of Servants — Scope of Employment
Once the actions or omissions of a servant have been proved to have been part of the process of the servant's duty for which he was employed, they render the master liable, even though the same actions were carried out contrary to orders or instructions, and even if the servant acted deliberately, wantonly, criminally, negligently, or for his own benefit, as long as what the servant did was merely a manner of carrying out what he was employed to do.
Constitutional Law — Remedies — Compensation for Violation of Non-Derogable Rights
Under Articles 50(1) and 53(2) of the Constitution, the Uganda Human Rights Commission Tribunal has power to order payment of compensation or any other remedy where it is satisfied that there has been an infringement of a fundamental right or freedom, and violation of a non-derogable freedom such as freedom from torture must be considered a deliberate breach of a fundamental right guaranteed absolutely by the Constitution.

Legislation cited (9)

Cases cited (5)

  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • AKSOY vs. TURKEY, (1195) 21 EA 573
  • VELIKOVA vs BULGARIA, Application No. 41488
  • MUWONGE vs ATTORNEY GENERAL (1967), (EA) 17
  • Kisembo Milton v Attorney General (UHRC Complaint No. FPT/005/2004)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kapel Bukuny v Attorney General 2016 UGHRC 29 (4 May 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.