Apuun Paul v Attorney General (Complaint MRT/11/2008) [2016] UGHRC 30 (2 May 2016)

Full Case Text

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### **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION AT MOROTO**

# **COMPLAINT MRT/11/2008**

APUUN PAUL I::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

-AND-

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::: RESPONDENT

# **DECISION**

The complainant brought this complaint as a brother to the late Lokee Phillip Lokolimeri. Apuun Paul is aged 40 years, resident of Loburiapaethe Village, Narengemoru Parish, Ngoleriet Sub-county in Moroto District

He testified that on 21st January 2008 his brother Lokee Phillip Lokolimeri and twenty seven (27) other people were arrested, tortured and taken to Kautakou detach by UPDF soldiers who had gone for a cordon and search operation in the area. He further alleges that, his brother was later released but as a result of the torture his brother was admitted at St. Kizito Hospital Matany whereby he died on 1st February, 2008

Apuun Paul contended that in causing Lokee Phillip Lokolimeri's death the soldiers were acting in the course of their employment as servants of the state. He further contended that the killing of Lokee Phillip Lokolimeri amounted to violation of Lokee Phillip Lokolimeri's right to life for which he holds the respondent vicariously liable. He seeks compensation.

The respondent's representative, Mr. Eric Lumbe denied liability.

### **Issues for determination by mu tribunal were:**

- *(i) Whether the respondent's servants violated Lokee Phillip Lokolimeri's right to life.* - *(ii) Whether the late Lokee Phillip Lokolimeri's family is entitled to compensation.*

Before I resolve the above issues I wish to note as follows:

The respondent's representatives denied liability and cross-examined the complainant and his witnesses but did not call any defence witnesses nor filed submissions.

But the above scenario did not in any way negate the complainant's duty to prove his claims against the respondent to the satisfaction of the tribunal.

Under S. 101(1) of the Evidence Act Cap 6:

"Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that those facts exist."

#### Under S.102 of the Evidence Act (Supra):

"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

I now turn to the issues.

## **(i) Whether the respondent's servants violated Lokee Phillip Lokolimeri's right to life:**

The right to life is protected by Article 22(1) of the Constitution of the Republic of Uganda which provides:

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*"No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competentjurisdiction 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 instruments to which Uganda is signatory.

Under Article 6 of the International Covenant on Civil and Political Rights (ICCPR): *"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."*

Under Article 4 of the African Charter on Human and Peoples Rights (ACHPR):

*"Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. "*

This provision on the right to life has been interpreted in the case of **Edward Kamana Wesonga V Attorney General UHRC No.197/1998** where Commissioner J. M Aliro Omara held that Article 6 of the ICCPR and Article 22 of the Constitution of Uganda protect the right to life except where death penalty is sanctioned by law or the right to self -defence in circumstances that warrant use of reasonable or proportionate force.

In the case of **Juma Abukoji Vs Attorney General UHRC/G/326/1999,** Commissioner Aliro Omara observed that in addition to the death penalty one can take another's life in self -defence or in defence of others or in any other circumstances where the taking of life would be lawful. As was held by Commissioner J. M Aliro Omara, the exception to deprivation of life is when a sanction has been passed against an individual by a competent court or when

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someone is killed in the exercise of reasonable force in circumstances that warrant use or exercise of reasonable or proportionate force or in any other lawful circumstances.

For the complainant to sustain a case of violation of **Lokee Phillip Lokolimeri's** right to life he had to prove that the respondent's servants caused his death, and that the said death was caused unlawfully.

The complainant testified that, in 2008, soldiers went to Cordon Kokorio village in Matany where he was with his deceased brother. That for him he was in the house.

### He added as follows;

*"The army surrounded the home at night and ordered the residents to come out. They asked who was called Lokee Phillip, then the people pointed at Lokee and when he stood up, the army started beating him and they beat him thoroughly. This was told to me by those who were beaten with my brother. They were later taken to Lokautakou barracks where they continued beating my brother to unconsciousness, while there the soldiers brought the injection and injected him but did not work. Another one was brought and it failed and when they saw he was about to die, Lokee and his colleagues were released, they were made to carry him off the barracks. When the boys got tired, they too left him behind but reported in the next village who later assisted him and accommodated him. With his condition, he could not help himselfnot even be able to eat".*

He further stated that the villagers mobilized a bicycle to take him to the clinic, where Lokee was being treated. That he stayed 5 days in the clinic then later transferred to Matany using the Commission's vehicle. After two days in hospital, Lokee passed on.

The complainant tendered in the death certificate in respect of the deceased dated lstFebruary 2010 and the cause of death was due to the torture by soldiers. The certificate was marked **Exl.**

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When cross examined by Counsel for the Respondent, the complainant was consistent and he stated that he was not around when the brother was being arrested and beaten but saw him at the Clinic. That his brother did not possess a gun, though this was alleged.

**CW2 LothiaLoli** testified that in the year he could not recall well, soldiers went very early to their village and ordered everyone to get out of their houses. That they ordered a one Lokee Phillip Lokolimerito get out but community members defended him saying that he had done nothing wrong but they were all beaten for supporting him and taken to Lokautakou Barracks and beaten badly. That due to the beating, Lokee became very weak and he collapsed in the process. That the beating continued until around 3pm and they were asking for a gun.

He further stated that the following day, the soldiers attempted to treat Lokee but since the body was very swollen, the injections could not go through. That this brought panic in the soldiers because they knew Lokee was going to die so they asked other suspects to carry Lokee to his home. That the suspects carried him to the road side hoping to get transport but ended up getting a bicycle on which he was put and pushed to Katigole Centre but did not get any treatment for him since his body was swollen and peeling off. That they were advised to take him home and from there, the complainant got a vehicle and took the deceased to Matany and after 3 days, the victim passes on.

When cross examined by counsel for the respondent, he stated that he was arrested together with the deceased and they were about 40 men. He also stated that at the time of arrest Lokee was not sick. He further stated that during the beating, Lokee received more beatings than any other person there on allegations of illegal possession of a gun. That Lokee never had a gun since he had gone to visit his sister and he was looking after her cattle. He stated further that Lokee was not able to move to the barracks alone but he was being supported by the fellow suspects. That when they reached the barracks, they were put in a small room which was not

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enough for the 40 people but they were squeezed there. That Lokee was very weak and kept on lying down which made the other suspects to step on him as they moved in and out of the cell

**CW3 Marook Anderea** testified that in February in the year he could not remember, around 5.00 a.m when he was at home in Kokoria village, the soldiers entered inside the Manyatta and started beating them, ordering them to come out. That they went out and the soldiers beat him together with Lokee Phillip. That the two of them were beaten badly. That the soldiers were asking for guns. That they beat them using sticks and made them to lie down. That Lokee's hand was being beaten and the whole body including his private parts. That later, they took them to Lokautakou Barracks (UPDF) on foot while supporting each other.

He further stated that when they reached there, the soldiers broke Tarmarine sticks and told them to lie facing the sun close to each other, and then the soldiers beat them. That Lokee was beaten more than him. That they beat him on the back, buttocks until the skin peeled off and his private parts, legs and ankles for about one hour. Then later they were pushed into the cells. Then they locked it with thorns.

#### He added as follows;

*"The following morning Lokee was told to bathe; as i was undressing him the shirt came out with the peeled offskin from his body. After I had finished bathing Lokee, the soldiers brought medicine. Medicine was poured on his wounds and then I was ordered to wash it off. Then the soldiers tried to inject Lokee, however, the injection could not enter his buttocks. Hence the soldiers told him to take him back home. On the way, Lokee collapsed and since I could not carry him alone, I left him there and went to collect his brother Apuun Paul and both of us went where I had left Lokee. It was early morning about 8.00 a.m, having reached where Lokee was, I left them. Apuun took his brother to the village as I also went to look for treatment for myself. After 3 days, I visited Lokee at Apuun's home; he was very weak and could not sit but was lying on his stomach. Since all the buttocks and back had wounds, after 4 days*

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*again, I went there and was told that Lokee had been taken to Matany and when he reached there, I was told that Lokee was dead. I saw the dead body in Matany Hospital where Apuun was taking care of it. It had started smelling. He had died during the night. I know it's the heavy beating meted on him, which killed him."*

Upon cross examination by Counsel for the Respondent, he stated that he was arrested in the same cell with Lokee and was beaten while he was there.

The respondent did not call any defence witnesses nor file written submissions in rebuttal to the complainant's allegations

The fact of the victims' death has been sufficiently shown by the testimonies of the complainant and his witnesses. Owing to the circumstances under which the incident happened, the soldiers intended to kill the victim. This is clearly seen by the way the deceased was beaten and also taken in the cells in a horrible state. The act of getting medication the following day when the deceased's body was already peeling in itself showed that he had been beaten severely.

Article 22 of the Constitution clearly points out the aspect of intention which is necessary to constitute a violation of the right to life. The only exceptions recognized are if the killing was due to self defence or caused by the death penalty after conviction and sentence have been passed by the highest appellate court.

Intention is a mental disposition which cannot be seen but can only be inferred from the circumstances of the case.

In the instant case, the circumstances under which Lokee died prove that the acts were intentionally done. cw2 & 3 state that the deceased was beaten more than any other person who had been arrested, when being taken to the barracks, he could not walk, then his skin started peeling as a result of the beating. Furthermore that in the morning, the soldiers themselves brought medicine to inject him but due to the swelling of the body, the medicine could not be administered. The soldiers ordered the suspects to take the victim back to her home. The question which is in my mind is why didn't the soldiers get the means of taking the deceased to a hospital for treatment instead of ordering the suspects to take a dying person to the Clinic with no means of transport?

In the case of **HyamVsDPP[1974] 2 ALLER 41** lord Hailshal stated that "if a man in full knowledge of the danger involved and without lawful excuse deliberately does that which exposes the victim to risk of probable grievous harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the same extent as if he had actually intended the consequence to follow irrespective that he wishes it or not.

The UPDF soldiers had full knowledge of the danger involved in severely beating up Lokee and later not taking him for treatment. The circumstances that led to the death of Lokee were unlawful since he was unlawfully beaten by the soldier which led to his death. Lokee was picked up from his home where he had just gone to visit his sister on allegations of being in illegal possession of a gun. Couldn't that gun if he really had it have been recovered without torturing him to that extent? The act of beating was a deliberate wrongful and unlawful act by the soldiers.

In **Ribitsch Vs. Austria ECHR SERIES NO. 336,** It was held that where an individual is taken into custody in good health but is found with torture marks, it is incumbent on the state to provide a plausible explanation as to the existence of the torture marks the obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where the individual dies. The respondent did not provide any explanation as to why the victim died after leaving their custody with torture marks.

Wherefore, basing on the evidence on record, I reach a conclusion that through the beatings meted on to the victim, the soldiers caused the death of Lokee Lokolimeri. They beat him severely, causing his skin to peel off in a lot of pain. The beating of Lokee thus leading to his death was glue some, malicious, deliberate and unlawful act. At all the material times, the soldiers were acting in the course of their

employment as servants of government. Their actions amounted to violation of Lokee Lokolimeri's right to life. The respondent is vicariously liable therefor.

### *(ii) Whether Lokee Lokolimeri's family is entitled to compensation:*

Under Article 50 of the Constitution:

*"Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent courtfor redress which may include compensation."* Further under Article 53(2) of the Constitution:

"The Commission may, if satisfied that there has been an infringement of a human right or freedom, order -

- a) - b) payment of compensation; or - c) any other legal remedy or redress."

Consequently, having held that Lokee Lokolimeri's right to life was violated, his family is entitled to compensation by way of general damages.

The right to life is the most important right without which all other rights and freedoms cannot be enjoyed. It enshrines one of the basic values of democratic societies. The sanctity of life commands maximum protection of every individual's interest in remaining alive.

For purposes of this tribunal, the material wealth (or lack of it) of the deceased is not a vital factor in assessing damages to be awarded to his family. What is important is that Lokee Lokolimeri was a healthy normal human being with a God-given right to live. This right was brutally taken away from him by the respondent's agents. To

value his right to life in terms of his poverty or riches would be a contravention of the provisions of Article 21(1) of the Constitution to wit:

*"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 ofthe law."*

In consideration of all the above, I deem a figure of U. ShslO,OOO,OOO= (Ten Million Shillings) adequate compensation to the family of the late LokeeLokolimeri. I so award.

#### **ORDER:**

**I \***

- (i) The complaint is allowed. - (ii) The respondent is ordered to pay the complainant a sum of U. Shsl0,000,000= (Ten Million Uganda Shillings) as general damages for violation of Lokee Lokolimeri after obtaining letters of administration. - (iii) The U. ShslO,OOO,OOO= will carry interest at court rate from the date hereof until payment in full.

EITHER party dissatisfied with this decision may appeal to the High Court of Uganda within 30 days from the date hereof.

DATED at **MOROTO** this 2016.

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**VIOLET AKURUT ADOMME PRESIDING COMMISSIONER**