Abuko Kolobina v Attorney General (UHRC/SRT/049/2010) [2016] UGHRC 20 (25 November 2016)


# **THE REPUBLIC OF UGANDA**

#### **THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL**

## **HOLDEN AT SOROTI**

### **COMPLAINT NO: UHRC/SRT/049/2010**

**ABUKO KOLOBINA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::COMPLAINANT**

**AND**

**ATTORNEY GENERAL:I::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE PRESIDING COMMISSIONER DR. KATEBALIRWE AMOOTI WA IRUMBA**

# **DECISION**

The Complainant (C), brought his complaint against R seeking compensation for alleged violation of her brother's right to life.

C alleged that her brother, one John Esimu was on Monday 17th January, 2005, beaten by the Arrow Boys attached to Apapai detach and he died on 19lh January, 2005 due to the same severe torture. She further stated that the matter was reported to Otuboi Police Post, a police file was opened and taken to CPS Kaberamaido and post mortem was carried out on 20th January, 2005. That in spite of all this, no progress on the same has ever been made since then by way of police investigations. He therefore came to the Commission to seek for redress for the violation of the victim's right to life.

The Respondent (R) through their representative (RC), State Attorney Juliet Topasho denied the allegations and opted for putting up a defence.

# **Issues:**

The issues to be resolved by the Tribunal are:

- 1. Whether the victim John Esimu's right to life was violated by State agents. - 2. Whether R is liable for the violation. - 3. Whether the victim's family is entitled to any remedy.

## **Tribunal hearing process**

Hearing of the matter started on 13th November, 2014. C and his two witnesses attended but R was not represented. The parties present testified. The minutes of the family meeting, the Letters of Administration and the post mortem report which C tendered in were admitted as CXI, CX2 and CX3, respectively. After this the matter was adjourned for C's case to continue at the next hearing session.

The second hearing took place on 25th March, 2015. C and his two witnesses attended and they were all cross-examined by RC, after which the matter was adjourned to enable C call more witnesses.

The third hearing was held on 1st June, 2016. C was the only party present and since she had no other witnesses to call, her case was closed and the Tribunal advised RC to come prepared at the next hearing to open the defence case.

The fourth and last hearing took place on 24th August, 2016. C was present and R was still represented by Counsel Juliet Topacho, who prayed that since they had failed to secure defence witnesses they be allowed to file a written submission. A period of one month was allowed for R to file a written submission and thereafter the Tribunal decision would be delivered.

R's written submission was delivered to the Commission on 29th September, 2016 and the main argument it advanced was that since R's agents were not fully identified by C, therefore R could not be held liable.

Since all the parties in this matter have been accorded all the opportunities and time they needed to present their case, it is now safe and fair to resolve the aforementioned three issues.

### **Issue 1: Whether the victim's right to life was violated by State agents**

C testified that on 17th January, 2005 her brother, John Esimu was beaten by soldiers who were on patrol around Apapai Trading Centre, as he was coming back home. That he was allegedly beaten because he had been mistaken to be a wrong person. That C was informed about her brother's death by his son, one Ebwetu Charles; and that it was Egita who informed her that the late John Esimu was mistaken for being a wrong person and therefore beaten.

C further stated that the deceased was not taken to hospital, since there was no vehicle to be used for this purpose as there was an insurgency in the area. That when she went to the deceased's home, she found the body with a swollen stomach, and there were marks of piercing on the abdomen. That she then reported the matter to Otuboi Police Post which brought a doctor from Lwala Hospital, who carried out a post-mortem on the deceased's body, and thereafter the family then buried the body.

That after the burial, a police officer from Otuboi Police Post came home and recorded statements from Enywau and Egita, and then he told the family members that he was going to open up a case file and send it to Kaberamaido Police Station. That however, since then there was no progress on the file at Kaberamaido Police Station. That her late brother had been arrested together with one Enywau who had also died by the time of her testimony, and there was therefore nobody else who had seen the deceased being beaten.

She stated further that after the deceased had been beaten, he walked towards his home but before reaching home, he passed by the home of Egita who had unfortunately also died. That the deceased victim had told Egita that he had been beaten. That after that Egita told his own father, Adenya John that John Esimu, the deceased victim had just told him that he had been beaten by soldiers. So on the following day, Adenya John went to the deceased's home and asked the deceased John Esimu what had happened to him. That John Esimu told Adenya that he had been beaten by soldiers and that as a result, he was weak and \on that very day, John Esimu died in the evening.

C testified further that she followed up the matter at Otuboi Police Post and thereafter, at Kaberamaido Police Station, and was at times told that the case file was there and at other times that it was not there.

She pointed out that by the time he died, John Esimu was about 45 to 50 years old and he had a wife called Rose Alengo and 5 children. That one of the children was already married, the second girl had delivered and the third girl was pregnant. That the other two children were still living with C, and the youngest was 13 years old.

During cross-examination, C reiterated that her brother John Esimu was beaten by soldiers and that he had told this to Egita and Adenya John (CW1), the latter who also testified as her first witness. C emphasized that she believed the information that was given to her about the death of John Esimu to be true because John Esimu and Enywau ( who also died 3 years later) had gone together to buy paraffin from the trading centre which was about <sup>1</sup> */i* km from John Esimu'<sup>s</sup> home when they met the soldiers.

C also reiterated that there was an insurgency in the village at that time of the incident, since at that time Kony rebels were in that area and could beat and kill people in the village. However, C argued that John Esimu could not have been beaten by rebels, saying that she was sure it was soldiers from Apapai who had beaten him. She further said that a health worker had been brought to treat John Esimu from his own home.

CW1 Adenya John testified that on the 17th ofJanuary, 2005 at around 4.00 p.m. his brother, the late John Esimu left for Apapai Trading Centre to buy some necessities but he did not know at what time he came back. That on the following day 18th January, 2005 in the morning, he realized that his brother had not come out of his home to work in his garden which was near his own garden and so, he went to John Esimu's home to find out why he had not woken up early.

That when he reached John Esimu's house, he opened the door and asked him why he was sleeping up to that time, to which John Esimu replied that he was not feeling well because soldiers based at Apapai detach had beaten him the day before. That when heard this, he took it lightly because at that time he did not see the injuries on John Esimu since he was lying on the bed and so, he went to his own home. That later when they carried out post mortem, he saw wounds on John Esimu's abdomen.

During cross-examination, CW1 confirmed that he was not present at the time ofthe incident but clarified that when he went to John Esimu's home before he died the latter told him that when he was with Enywau, he was beaten by soldiers from Apapai but he did not ask him the time the incident had happened and he did not also ask Enywau whether it was true that he was with John Esimu at the time of the incident of assault. He further pointed out that Enywau disappeared when he heard that John Esimu had died but he had himself also died 3 years later.

CW1 also stated that there had been an insurgency in their areas and that is why soldiers had been stationed at Apapai but that John Esimu had told him it was soldiers who had beaten him and not rebels. He added that after receiving the news of his brother's death, he went to John Esimu's house and saw the body, made an alarm and people came to the home. That the police was called and they came with a doctor from Lwala Hospital to carry out post mortem. That he personally saw injuries on the late John Esimu's abdomen, and the injuries were showing sharp objects to have pierced the abdomen.

That after the post mortem had been done the police then allowed the family to bury the body. He further clarified that John Esimu did not have a wife at the time of his death but he had earlier married and produced children with a certain woman but the couple had separated.

CW2, Dr. Ojom James a medical expert testified that he was a Medical Doctor with a working experience of three and a half years and based at Lwala Hospital. That he had a Bachelor's Degree in Medicine and Surgery which he obtained in 2011 at Mbarara University of Science and Technology.

He noted that the document that was put before him for interpretation was a post mortem report written on 20th January, 2005 on Esimu John from Komelo village. That the place of death was Komelo village in Kaberamaido. That John Esimu died on 19th January, 2005 at about 1400 hours and the presumed cause of death was beating.

That the form had been filled out by Doctor Elaju Moses on 20th January, 2005 while he was working at Lwala Hospital and before he was transferred to St. Joseph's Kitgum Hospital.

That the post mortem report had been forwarded to Lwala Hospital by D/CPL Oparet. CW2 clarified that Dr. Elaju Moses proceeded to Komelo village and examined the body of an African male. That the police officer who was present was D/CPL Oparet. That Adenya John identified the deceased's body as that of Esimu John of Komolo, based on physical appearance. That Doctor Elaju found the body lying under a tree on sandy soil. That the body was clothed in a white striped shirt and grey trousers. That there was no weapon found near the body. That the Doctor saw edema on the deceased's body as well as blisters on the trunk, the left lower limb and on the left eye. That there were no other specific marks seen. That there were however, abrasions on the deceased's lower back. That Doctor Ejalu Moses proceeded to do an autopsy and his findings were: edema of the eyes; discharge from the left eye; blisters on the trunk; abrasions on the back/loss of skin; the left leg had blisters but had no fractures on the viscera; there was hemorrhage in the mezantare; that body infirmity was mainly soft tissue injuries, and the presumed cause of death was soft tissue injuries with bleeding in the mezantry; that blunt objects were used to injure the deceased. That the Doctor's general observations were soft tissue injuries on the face and abdomen. That the findings were recorded on 20th January, 2005.

During cross-examination, CW2 confirmed that he had worked at Lwala Hospital since August, 2007 adding that when he had just reported to the Hospital, he certified the post mortem report. He also pointed out that he had never seen Doctor Ejalu but his paperwork and documents were stored in the Hospital Registry. He also said that the post mortem report did not reveal when the injuries could have been caused.

C alleged violation ofthe victim's right to life which is protected by International and Regional (African) human rights laws to which Uganda is a signatory and which is specifically protected by the Constitution ofUganda.

To this effect, at the international level, **Article 3** of **the Universal Declaration of Human Rights (UDHR)** provides that everyone has a right to life. The same right is enshrined in **Article** **6** of **the International Covenant on Civil and Political Rights (ICCPR)** which provides that every human being has the inherent right to life, and this right shall be protected by law and no one shall be arbitrarily deprived of his life.

At the Regional level, the same right is also protected under Article 4 of **the African Charter on Human and Peoples' Rights (ACHPR),** which provides that human beings are inviolable, adding that every human being shall be entitled to respect for his life and the integrity of his person, and one may be arbitrarily deprived ofthis right.

Nationally, the right to life is protected by **Article 22 (1)** of the **1995 Constitution,** which provides that "no person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda, and the conviction and sentence have been confirmed by the highest appellate court."

According to Article 22 (1), illegal deprivation of one's life occurs when:

- Death is caused by the State or an individual. - In the absence of a sentence passed in a fair trial by a competent court. - The sentence was not in respect of a criminal offence under the laws ofUganda; and - The conviction and sentence were not confirmed by the highest appellate court.

Therefore a violation ofthe right to life shall occur where one or all ofthe above ingredients are present.

C stated that she was informed by her nephew about the death of her brother and the people who had caused his death. That the soldiers from Apapai beat late John Esimu because they suspected him to be a wrong person. However, C honestly clarified that she was not present when the said incident took place, and that this was during the Kony insurgency although she strongly disputes the fact that her brother had been killed by the rebels. C was only able to witness the deceased's body on which she found bruises on the abdomen.

C's evidence in this respect is corroborated by the evidence adduced by CW1, who stated that on 17th January, 2005, he personally talked to late John Esimu who personally and directly told him that soldiers had beaten him at night, although he also pointed out that he did not see the bruises on that day since the deceased was lying on his bed. The importance of this evidence is that CW1 narrated what he was personally told directly by John Esimu before he died as having been the cause of his ill health at that time.

The aforementioned post mortem report also scientifically confirms that late John Esimu suffered soft tissue injuries on the face and abdomen, and that the presumed cause of death was soft tissue injuries with bleeding in the mezantry; and that blunt objects were used to injure him so devastatingly.

The afore-cited statement that late John Esimu is reported to have told CW1 before he died as to the cause of his ill health at the time the two of them talked, can be considered to be a dying declaration under Section 30 (a) of the **Evidence Act Cap 6,** which provides that statements written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court to be unreasonable, are themselves relevant facts when the statements are made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause ofthat person's death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his or her death comes into question unless there is satisfactory corroboration.

However, in the case of **Tindigvvihura Mbahe vs Uganda, Cr. App. No. 9 of 1987,** the learned judge warned himself and the assessors ofthe need to accept the dying declaration with caution and the need for testing its reliability. He considered the circumstances under which the dying declaration in that case was made and held that the conditions favoring correct identification were present. These were that the appellant was known to the deceased before. That there was a tadoba light and therefore the attack did not take place in the dark. That the attack was not carried out in circumstances of confusion and surprise. That there was an exchange of words between the deceased and the appellant wherein the deceased even told the appellant that he had recognized him and mentioned his name and the appellant acknowledged that the deceased had indeed recognized him. That the deceased also pleaded for mercy from the appellant. That the deceased mentioned the name of the appellant as her assailant soon after the attack to PW3 and PW4, and continued mentioning his name while she was in hospital till she died. Because of these factors, the learned judge, like the assessors, was satisfied that the deceased could not have been mistaken in her identification ofthe appellant as her assailant.

This principle of law was upheld by the Supreme Court in the case of **Mibulo Edward v Uganda [Cr. Appeal No.17 of 1995 (1995) UGSC 8 (28 November 1995)]** stating that:

> Evidence of a dying declaration must be received with caution because the test of cross-examination may be wholly wanting; and as particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification ofthe assailant is usually more difficult than in daylight. The fact that the deceased told different persons that the appellant was the assailant is no guarantee of accuracy. It is not a rule oflaw that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking very unsafe to base conviction sorely on the dying declaration of a deceased person made in the absence ofthe accused and not subjected to cross-examination

The facts of the instant case are, for comparison purposes, distinguishable from those in the case *QiMande* **v.** *Republic (1965)* **EA 193,** where the deceased had asked the appellant: "Why are you killing me?" and the appellant denied the accusation. Then the deceased said, "If, you did not kill me, let us shake hands" and the appellant shook hands. The deceased then said, "If you did not kill me God knows" and died soon afterwards. In this particular case it was therefore held that

having regard to the last words ofthe deceased the court could not exclude the possibility that up to the moment the deceased died there was a certain amount of doubt still lingering in her mind about the identity ofthe appellant.

In the Complaint before me, the deceased told his brother, CW1 that he had been beaten by soldiers from Apapai at night as he was coming back home from the trading center. Considering the fact that the alleged assault incident is said to have taken place at night, in the dark, there is a possibility that the deceased may have not identified the perpetrators ofthe assault properly or, at all.

Secondly, both C and CW1 confirmed the fact that at the time of this incident, there was Kony insurgency in the area, which information raises the possibility of late John Esimu having been attacked by the rebels, although C denied that possibility relying on the fact that the deceased had specifically identified to CW1 the people who had attacked him.

There was no any eye-witness, or any other person who credibly corroborated the fact as to who had actually assaulted late John Esimu. C and her witnesses did not personally and directly witness the beating. The post mortem report on the other hand, also only refers to the injuries found on late John Esimu's dead body. Although this confirms that indeed late John Esimu was beaten and this led to his death, nevertheless the report does not point out in any specific way who the perpetrators of the assault were. Accordingly, although late John Esimu's right to life may have been violated, even on a balance of probabilities there is no clear and credible evidence leading to a reasonable conclusion as to who was responsible for the violation.

Accordingly, even on a balance of probabilities C's claim that late John Esimu's right to life was violated by State servants, the soldiers from Apapai detach, does not succeed.

## **Issue No 2: Whether R (Attorney General) is liable for the violation**

As to whether R is liable for the violation, first, it is a truison that according to Article 119 (4) (c) of **the Constitution** and Section 10 of **the Government Proceedings Act,** the Attorney General is mandated to represent Government in any civil proceedings to which government is a party, as has rightly been the case in this matter.

Moreover, in the case of **Muwonge V Attorney General (1967) E. A 17,** Newbold P. agreed with the submission that the principle of law governing the liability of the Attorney General in respect ofthe acts of a member of the police force are precisely the same as those relating to the position of a master's liability for the act of his servant. He therefore held that "...a master is liable for the acts of his servant committed within the course of his employment or, to be more precise in relation to a policeman, within the exercise of his duty. The master remains so liable whether the acts ofthe servant are negligent or deliberate or wanton or criminal."

Furthermore, in the case of **Jones V Tower Boots Co. Ltd (1997)2 ALL ER 406,** the court held that "an act is within the course of employment if it is either a wrongful act authorized by the employer or a wrongful and unauthorized mode of doing some act authorized by the employer".

However, I have already concluded that in the instant matter, although late John Esimu's right to life may indeed have been violated, there is no credible evidence clearly pointing to the actual perpetrator of the violation and certainly, not to State agents as was alleged by C. It must therefore remain a regrettable factor that the police did not carry out investigations into C's complaint in this respect and if they had done so, perhaps we would have ascertained the truth about this contentious issue from their investigation report.

Accordingly, this is why I have already ruled that C's complaint against State agents fails.

In the premise, I therefore hold that R is not liable for the acts alleged by C.

## **Issue 3: Whether the C is entitled to any remedy**

Although Article 53(2) (b) of **the 1995 Constitution** is to the effect that the Commission, if satisfied that there has been an infringement of a human right or freedom, shall order for redress which may include compensation., since C's complaint has failed, there is no remedy ordered in this decision.

I therefore order accordingly as follows:

## **ORDERS:**

- 1. Complaint No. UHRC SRT/049/2010 is dismissed for want ofmerit. - 2. Either party to meet their own costs, if any. - 3. Either party may appeal to the High Court of Uganda within thirty (30) days from the date ofthis decision ifnot satisfied with the decision ofthis Tribunal.

So it is ordered.

**DATED AT SOROTI ON THIS ....... DAY OF**

**DR. KATEBALIRWE AMOOTI WA IRUMBA PRESIDING COMMISSIONER**