Acwany v Attorney General (Complaint No: UHRC/MRT/O18/2009) [2017] UGHRC 24 (16 October 2017)

Full Case Text

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## **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL [UHRC] HOLDEN AT MOROTO COMPLAINT NO: UHRC/MRT/O18/2OO9**

**ACWANY LILY::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;::::::: COMPLAINANT** rt /

## **; -AND-** J S

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**. ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **K DECISION**

### *1* **[BEFORE COMMISSIONER MEDDIE B. MULUMBA]**

The Complainant Acwany Lily a resident of Panyangara Sub County in Kotido ^District alleged that on 3rd March 2009, her late son Lowiny Lokwakou [the ^deceased] while on his way to Napumpum where he was going to identify some of his cattle that had been rescued from suspected *matheniko* warriors was arrested by Uganda People's Defence Forces [UPDF] soldiers. That the deceased was thereafter taken by the soldiers to UPDF Brigade headquarters in Kotido. That while she was on her way from Kotido Health Centre IV, she heard gunshots from the direction of her village and that when she arrived home, she found the deceased's dead body which had been brought by UPDF soldiers. The complainant also alleged that she was informed that the deceased had died

while on the way to hospital where the UPDF soldiers were taking him for treatment after shooting him. She further alleged that the soldiers removed Ug. Shs. 800,000/- and a mobile phone from the deceased. The Complainant sought compensation for the violation of the deceased's right to life and property.

The Respondent who was represented by Ms. Rachael Nakabonge denied the allegations.

#### **ISSUES:**

During the Tribunal hearing, the following issues were framed and agreed upon by the parties:-

- I. Whether the victim Lowiny Lokwakou's right to life was violated by the Respondent's agents? - II. Whether the victim's right to property was violated? - III. Whether the Respondent (Attorney General] is liable for the violation of the victim's right to life? - IV. Whether there are any remedies available to the Complainant?

Before I resolve the above issues 1 wish to note that I delivered a decision in this complaint on 15th February 2017 but on 10th March 2017 the Respondent Counsel Nakabonge Racheal filed an application to have the decision reviewed. In the affidavit in support of the application, the Respondent Counsel stated that the Respondent's written submissions in defence which had been filed with the Commission's - Moroto Regional Office on 24th July 2015 had not been taken into consideration while reaching at the said decision and that, had they

been considered, the outcome of the decision would have been different. 1 heard this application on 3rd April 2017 and allowed it hence this reviewed decision.

Before 1 resolve the above issues, I wish to note that this matter was first heard by former Commissioner Violet Akurut Adome and it is basing on her record of proceedings that 1 have arrived at this decision. I wish to also point out that during the Tribunal hearing Respondent Counsel cross-examined the Complainant and her witness but did not call defence witnesses but instead opted to file submissions in defence.

Nonetheless, the Complainant has the burden to prove the allegations against the Respondent's agents on a balance of probabilities **[see Miller vs Minister of Pensions [1942] 2 ALLER 272; Okello Tom Ibrahim SC Another vs Attorney General UHRC/G/88/2005]. In Betty Tibaleka SC 2 Ors vs. Dr. C. R Vicent Karuhanga [1995] KALR 904** citing **Section 101 [1], 102** of the Evidence Act Cap 6, it was held that it is trite law that he who alleges the existence of a given fact must prove it.

I will therefore proceed to resolve the issues raised.

**Issue I: Whether Lowiny Lokwakou's right to life was violated by the Respondent's agents?**

The right to life is protected by Article 22[1] of the 1995 Constitution of the Republic of Uganda [hereinafter "The Constitution"] which provides that *"No person shall be deprived of life intentionally except in the 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".*

The right to life is further protected by various International Human Rights Conventions to which Uganda is signatory to such as Article 3 of the Universal Declaration of Human Rights [UDHR] 1948, Article 6 [1] of the International Covenant on Civil and Political Rights 1996 [ICCPR], and Article 4 of the African Charter on Human and Peoples Rights [ACHPR]. It is important to note that the right to life as laid out under Article 22 [1] of the Constitution is not absolute and there are instances where it can lawfully be taken such as where a penalty of death has been sanctioned by the law and the right to selfdefense in the circumstances that warrant use of reasonable and proportionate force.

The Complainant alleges that on 3rd March 2009 UPDF soldiers shot her son the Late Lowiny Lokwakou for which she seeks for compensation. As earlier noted the complainant has the burden to prove the allegations against the Respondent's agents on a balance of probabilities. For the Complainant to sustain a case of violation of Lowiny Lokwakou's right to life, she has to prove that the Respondent's agents caused the deceased's death and that the said death was unlawfully caused **[see Alyao Richard vs Attorney General UHRC/GLU/956/1998].**

In a bid to prove her case the Complainant testified in person and called one witness Lokiru Dominic **[CW 1].** The Complainant testified that on 3rd March 2009 her late son Lowiny Lokwakou was arrested by UPDF soldiers. She was

later informed by a one Lokiru Dominic that her son had been shot by soldiers and taken to Kotido Hospital. The body of the deceased was later brought by UPDF solders later brought the body of her son and hurriedly buried him in a shallow grave. She further testified that she mobilized villagers to help her to exhume the deceased's body from the shallow grave in order to give him a proper burial and that upon exhumation she observed that the victim's stomach had been shuttered by bullets.

CW 1 Lokiru Dominic testified that he was the LC I Chairman of Lomolic village and gave an eye witness account of the shooting of the victim. He testified that in April 2009, *Matheniko* warriors had raided cattle from their village but were intercepted at Napumpum detach. The deceased was later informed by the UPDF that they had intercepted some stolen cattle. The deceased was later invited by the UPDF to the barracks to identify the cattle. On the way to the detach the deceased was arrested by UPDF soldiers and taken to Nakapelimo Brigade barracks. On the following day, the victim was brought by UPDF soldiers before him and other elders and that when the deceased attempted to run, the soldiers shot at the deceased and killed him. CW I also testified that he was among those who carried the body of the deceased onto the car which was to take the deceased to the hospital. Thereafter the soldiers brought back the body of the Late Lowiny and instructed them to dig the grave hurriedly and the deceased was buried in a polythene bag. He further testified that the following day, the deceased's body was exhumed for proper burial and the stomach of the deceased was found shuttered because of the gunshots.

In his response to the allegations, Lt. Col. KA Muhanga the Brigade Commander of 405 infantry Brigade of Nakapelimoru Barracks, Kotido in a

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letter to the Commission dated June 2009 wrote inter alia that; *"... Lowiny confessed that he had a gun at his home and that he wanted to hand it over but as the soldiers and Lowiny reached Lamonia, Lowiny turned violent and tried to escape but was shot by the soldiers and immediately taken to Kotido Health Centre where he died".* This letter was tendered and admitted in evidence as Exhibit I. This letter clearly implicates the Respondent's agents and corroborates the Complainant and CW I's testimony that the deceased was shot **by UPDF soldiers. In Zirimu Johnson and Attorney Genera! UHRC/34472004** the tribunal accepted a letter to the Commission written as signed by SP Elodu E Erasamus admitting to arresting Zirimu Johnson. In **Kakooza JB vs Electoral Commission & Anor [2008] KALR 138** it was held that when a document is not objected to; then it is taken as admitted. Under Section 57 of the Evidence Act, facts admitted need not to be proved. The letter corroborates key aspects of the Complainant's and CW I's testimony as to who shot the deceased. It is not therefore in dispute that the deceased was shot by UPDF soldiers.

The critical question to be answered therefore is whether the taking away of the life of the deceased was lawful under Article 22 [1] of the Constitution. As earlier noted the Respondent did not call any defence witnesses but opted to file submissions. Respondent Counsel in her written submission cited Objective XXIX [c] and [e] of the Uganda National Objectives and Directive principles of state policy and Article 17 [I] [b] and [f] of the Constitution of the Republic of Uganda which places a duty on every citizen to respect the rights and freedoms of others. Respondent's Counsel in her submission further contends that **"the deceased was a habitual raider who always caused insecurity in the neighboring areas therefore ceasing to enjoy any rights if an/'.** During cross examination of

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the Complainant, the Respondent's Counsel further implied that the deceased had caused his own death; **'So don't you see that he [the deceased] was guilty of possession of an illegal firearm, had he handed it over, he would not have died, hence he caused his own death".** He further went on to inform the Complainant during cross examination that; **'therefore the death of your son was a complete accident, no one intended it to occur".**

She further submitted that the deceased and the Complainant failed in their duty of contributing to the wellbeing of their community since they did not live in harmony with others and even failed to cooperate with the UPDF soldiers to surrender their guns upon peaceful request. She also relied on the principle of voluntary assumption of risk - volenti *non fit injuira* by stating that the deceased did not die at the hands of the UPDF soldiers intentionally since the deceased was raiding and causing atrocities and hence assumed the risk. That the UPDF soldiers had no intention of depriving the deceased of his right to life since it was an accident.

Human rights are inalienable: they are not things that a person can lose by virtue of the way he/she acts. Under Article 21 [1] of the Constitution of the Republic of Uganda 1995, all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and **shall enjoy equal protection of the law** [emphasis mine]. Additionally, Article 221 of the Constitution of the Republic of Uganda 1995 places a duty upon members of the Uganda People's Defence Forces [UPDF] to observe and respect human rights and freedoms in the performance of their functions. In Uganda, security operatives especially members of the Uganda Police Force and UPDF act in ways that deny people some of their human rights such as right to life and claiming to be justified in doing so by arguing that such persons are criminals "who need to be dealt with". This line of argument by the Respondent's Counsel that the shooting of the deceased by the Respondent's agents was justified because he was habitual cattle raider is misconceived and cannot be entertained by this Tribunal.

The right to life is undoubtedly the pivotal point in the concept of the protection of human rights. Physical survival is a prerequisite for benefiting from various rights and liberties included in human rights treaties. Once life is unlawfully taken it can never be brought back. Death is final and irreversible. Even if the deceased might have been a habitual raider who was not living in harmony with other members of his society as alleged by the Respondent's Counsel, the UPDF had no legal justification to take away his life in such a brutal manner.

Therefore the victim's death did not fall within the exceptions outlined in Article 22(1] of the Constitution of the Republic of Uganda and as such was unlawful. The victim's right to life was therefore violated by the Respondent's agents.

## **issue II; Whether the victim [Lowiny Lokwakou]'s right to property was violated by the Respondent's agents?**

The Constitution of the Republic of Uganda Article 26 [1] provides that every person has a right to own property either individually or in association with others. For the Complainant to prove that the Late Lowiny's right to property was violated, she has to prove that the deceased had ownership and or was in possession of the property at the material time and that the property was unlawfully taken from the deceased by the Respondent's agents **(see James Rwanyarare and Patrick Muhumza and others UHRC 304/1999],**

The Complainant testified that on 3rd March 2OO9z UPDF soldiers removed UGX 800,000/- (eight hundred thousand shillings] plus a mobile phone which she had previously given to the deceased. There is no evidence on record to corroborate the allegations of violation to right to property. I agree with Respondent's Counsel that the Complainant did not see the UPDF soldiers taking the alleged money and mobile phone.

In the absence of corroborating evidence, I therefore resolve this issue in the negative.

## **Issue III; Whether the Respondent (Attorney General] is liable for the violation of the victim's right to life?**

The law on vicarious liability as enunciated in **Muwonge vs Attorney General (167] EA 17** has been further laid out in various decided cases. For the doctrine of vicarious liability to apply, there must be three essential ingredients; there must be a relationship of employer and employee, the tort must be committed by the employee and, in the course of the employee's employment (see **Thunderbolt Technical Services vs Apedu Joseph St Kk Security [U] Limited HCCS340 Of 2009 ].**

In relation to the facts in issue, the UPDF soldiers attached to Napumpum army detach are employees of the Ministry of Defence that is an organ of the Government which is represented by the Respondent. No evidence was adduced before this Tribunal to suggest that the UPDF soldiers who shot the deceased were on a frolic of their own. According to section 3 [I] [a] of *The Government Proceedings Act,* Government is subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of torts committed by its servants or agents, where such conduct would have given rise to a cause of action in tort against that servant or agent or his or her or estate.

On basis of the evidence availed to this Tribunal, 1 find that the complainant has proved on the balance of probabilities that the UPDF soldiers who shot the deceased were in the course of their employment for which the Attorney General is vicariously liable. The UPDF were trying to recover a gun which was alleged in the possession of the deceased and I therefore have no hesitation in concluding that all this was done by the agents of the Respondent in course of their employment. 1 therefore find that the Attorney General is vicariously liable for the acts and omissions of its servants.

**Issue IV: -Whether there is any remedy available to the Complainant.**

Under Article 50 [1] of the Constitution of the Republic of Uganda 1995, any person who claims that a fundamental right or freedom guaranteed under the Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation [see also the Universal Declaration of Human Rights [UDHR] Article 8] . Under Article 53 [2] [b] and [c] of the Constitution of the Republic of Uganda 1995 the UHRC may, if satisfied that there has been an infringement of a human right or freedom, order payment of compensation or any other legal remedy or redress.

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Human rights would have no meaning if there was no redress for victims of human rights violations.

Having resolved Issue 1 and 111 in the affirmative, the estate of the deceased is entitled to compensation. Accordingly, the only question left is on the quantum of damages the estate of the deceased is entitled to.

The deceased at the time he was unlawfully shot he was unarmed, was shot several times by soldiers of the 405 Infantry Brigade of Nakapelimoru Barracks, Kotido. When the soldiers realized that he was dead, they went ahead and rolled him in a polythene bag and buried him in a shallow grave. The deceased's relatives and village mates had to exhume his body to accord him a decent burial. The death of the deceased could have been avoided since at the time he was unarmed and the soldiers could have pursued him instead of spraying him with bullets. The soldiers were not remorseful about their action and this is shown in the manner in which they treated the body of the victim, not only did they take the life of a young man but buried him in a shallow grave.

The deceased was a young man in his 20s at the prime of life whose life was shortened by the actions of the Respondent's servants. As per the testimony of the complainant who is also the mother of the deceased, the deceased left behind a wife who at the time of his death was expecting a baby. In **Kyarimpa Annet vs Attorney General UHRC/FPT/080/2004,** the Complainant's husband was arbitrarily shot dead by a policeman attached to Nyakasana Police Post, the Complainant was awarded UGX 25, 000, 000/= as compensation. In **Mugisa Juma vs. Attorney General, UHRC/FPT/144/2003,** Commissioner

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Constantine K. Karusoke awarded the victim's family compensation to the tune of 35,000,000= [thirty five million shillings] for the deprivation of the right to life by the Respondents of a husband, father and provider in many respects. The Respondent is ordered to pay to the estate of the Late Lowiny Lokwakou a sum of UGX 30, 000, 000/= [thirty million shillings only] as general damages for the violation of his right to life.

The act of the UPDF soldiers shooting live bullets at random at deceased was unconstitutional, arbitrary and oppressive is highly condemned by this Tribunal. The Respondent's agents acted contrary to their obligation under Article 221 of the Constitution of the Republic of Uganda 1995 that calls upon security organizations to observe and respect human rights at all times when performing their duties. As earlier noted, the Respondent's agents acted unconstitutionally and as deterrence, it must be condemned in exemplary damages. Exemplary damages are not to enrich the Complainant, but to punish the Respondent and deter it from repeating its conduct **[SAM AKANKWASA vs ATTORNEY GENERAL HCCS 202 of 2013],** This case therefore falls within the category of cases in which exemplary damages may be awarded on top of general damages [see Dr. Nganwa William and Another Vs Attorney General, HCCS No. 640 of 2005; Matsiko Silagi Bernard and Mbagukire Peter vs AG HCCS No 383 of 2002; Nabukenya Margaret and Attorney General UHRC/JJA 103/2004; Okello James vs. Attorney General in HCCS No. 574 of 2003].

Exercising my discretion upon the findings above, 1 condemn the Respondent to pay to the estate of the deceased a sum of Ug.shs. 10,000,000= [Uganda

ShiHing^etg^mrllion] by way of exemplary damages. The respondent's agents should know that they are not above the law.

## **ORDERS**

The Tribunal hereby orders as follows:

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay to the estate of the Late Lowiny Lokwakou a sum of UGX 30, 000, 000/= [thirty million shillings only] as general damages for the violation of his right to life. - 3. The Respondent is ordered to pay to the estate of the Late Lowiny Lokwakou a sum of UGX 10, 000, 000/= [ten million shillings only] as general damages for the violation of his right to life. - 4. The said total sum of UGX 40, 000, 000/= [Uganda Shillings forty million only] shall carry interest at Court Rate from the date of the decision until payment in full.

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.

Dated at MOROTO this .........day of .......................2017.

**MEDDIE B. MULUMBA PRESIDING COMMISSIONER**