Bukirwa Agnes v Attorney General (Complaint UHRC 33 of 2012) [2018] UGHRC 4 (27 March 2018)


# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA** COMPLAINT NO: UHRC/033/2012

BUKIRWA AGNES ::::::::::::::::: <pre>::::::::::::::::::::::: COMPLAINANT</pre> $-AND-$

## ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

(BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA)

#### **DECISION**

The Complainant Bukirwa Agnes a resident of Kalanzi Zone – Kikubamutwe, Kabalagala Makindye Division, Kampala District alleges that on 9<sup>th</sup> January 2012 following the planned visit of the Lord Mayor to the old taxi park, there was a heavy Police deployment at the old taxi park. That as she was having lunch at her work place which is located at the old taxi park she heard a loud explosion and tried to take cover. That a few minutes later she felt a lot of pain and heat all over her body and when she tried to get up she could not help herself. That she was later taken to Mulago hospital aboard a Police Patrol Pick up but abandoned at the Casualty Ward. That at Mulago Hospital an operation was carried out in which

plastics were removed from her body. That she was later discharged and stayed for one month without working which led her to loss income. That as a result of the injuries sustained, she still suffers from side effects such as frequent headaches, short term memory loss which have made it very difficult for her to continue work and earn a living.

At the commencement of the Tribunal hearing, the following issues were framed and agreed upon by the both parties:-

- I. Whether the Complainant's right to freedom from torture, inhuman or degrading treatment or punishment was violated? - II. Whether the Respondent is liable and if so whether the Respondent has any defence? - III. Whether there is any remedy available to the Complainant?

This matter came up for $1^{st}$ time hearing on $9^{th}$ February 2015 before former Commissioner Violet Akurut Adome. At the hearing the Complainant appeared with two witnesses while the Respondent was not represented. Examination in chief was carried out on the Complainant and Kyeyune William CW I and Kaggwa Richard CW II. On 8<sup>th</sup> August 2016 when the matter came up for hearing before me, the Respondent was represented by Counsel Kokunda Clare who informed the Tribunal she could not proceed with hearing since she was holding brief. When the matter came up for further hearing on 27<sup>th</sup> February 2017, Commission Counsel informed the Tribunal that efforts to secure a medical doctor to interpret the medical documents were futile. The Complainant's case was closed and opened for defence. The matter came up for defence on 25<sup>th</sup> September 2017 but the

Respondent was not represented. At the hearing Commission Counsel Nassiwa Esther Jjuko prayed to call additional medical evidence. This prayer was disallowed by the Tribunal and the matter was therefore adjourned for a decision.

As to the first issue, the Complainant's evidence is that on 9<sup>th</sup> January 2012 prior to the Lord Mayor's visit at the old taxi park, there was heavy Police deployment. As she was having her lunch at her workplace she heard a loud explosion and therefore run for cover. Shortly after she felt a lot of heat and her skirt had caught fire. She called for help and some of her workmates came to her rescue. Her workmates including Kaggwa and others carried and put her abroad a Police patrol vehicle which took her to Mulago Hospital Casualty ward. She was taken for an x-ray and later to the theater where she was operated upon on the wounds caused by the gunshots. She was admitted at Mulago Hospital for one day and later discharged. During the hearing the Complainant also showed the Tribunal the dress she was wearing on the fateful day and deep wounds on the left hand and left leg. The Complainant tendered in the discharge form and medical report from Mulago Hospital which were marked ID 1 and 2 respectively. The two photographs showing the injuries sustained by the Complainant were tendered in evidence and marked **Comp Exh1**.

Kyeyune William CW I testified that on 9<sup>th</sup> January 2012 there was a demonstration by taxi drivers at the old taxi park in Kampala. Policemen were deployed at the Taxi Park. A scuffle ensued between the Policemen and taxi drivers and during the scuffle the Complainant was shot with rubber bullets by a uniformed Policeman. The Complainant fell down and he thought she had died. They call for Police help. Together with other

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people they picked up the Complainant and took her to the Police patrol car. The Complainant was in a bad state and bleeding a lot and he thought she was going to die. The Complainant was taken to Mulago hospital aboard the Police vehicle and escorted by Kaggwa Richard and one Musinguzi. He later used the Complainant's phone to call her relatives. He later saw the Complainant after one week and she had a big wound on her hand which was bandaged.

**Kaggwa Richard CW II** testified that the Complainant is his workmate at the old taxi park. At 2:00 pm on 9<sup>th</sup> January 2012 there was a demonstration by taxi drivers. Police was deployed to stop the demonstration and in the process the Police shot teargas hence people begun running. Shortly he saw the Complainant on the ground bleeding. Together with Musinguzi they carried the Complainant to the Police patrol car and he escorted her to Mulago Hospital. By the time they reached Mulago Hospital, the Complainant was unconscious and her left hand and knee were injured. He later saw the Complainant one month after she had been discharged and her wounds were healing.

The Complainant has a legal duty to prove his claim against the Respondent on a balance of probabilities notwithstanding that the Respondent did not call witnesses or file a defence [See 100-102 of Evidence Act Cap 6; John Patrick Besingiza & Another vs Attorney General UHRC/MBR/009/2007; Hakizimana Francis and Attorney General UHRC/CTR/10/2009; Bagume John and Attorney General UHRC/JJA/10/2007; Okia John & Emuge Joseph and Attorney General UHRC/SRT/208/20061.

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The Complainant's testimony is that on 9<sup>th</sup> January 2012 she was hit with a rubber bullet fired by the Respondent's agents who were trying to disperse a demonstration at the old taxi park. She was later taken to Mulago Hospital where she was operated upon. CW I and CW II were present at the scene and even helped carry her to the Police patrol vehicle. The medical reports ID 1 & 2 showed that the Complainant had a painful wound around the arm and leg, some severe bleeding and plastic fragments. I am of the opinion that the doctor who examined the doctor or any other qualified medical expert would have clarified more on the crucial parts of medical documents had been called as a witness. This would have enable the Tribunal clarify on the nature, extent of the Complainant's injuries and an effects the injuries would have had on her.

Whoever wishes to deny or dispute the allegation made against him or her must of necessity challenge the relevant allegation by way of adducing evidence through his or her witnesses' testimonies and/or cross examination of the witnesses on the opposite side (see **Zirimu Johnson** and Attorney General UHRC/CTR/344/2004; Badru Kule and Attorney **General UHRC/219/2003).** As earlier noted, the Respondent did not appear for the Tribunal hearing despite receipt of summons.

In Apollo Amon and Attorney General UHRC/2006 reported in UHRR [2008-2011] 103 the tribunal in this matter held that on a balance of probabilities SPC Wagaba Godfrey had unjustifiably and internationally shot and injured the complainant as he was leaving his home. It further held that his actions amounted to torture, cruel, inhuman and degrading treatment. The tribunal further classified the actions of SPC Wagaba

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Godfrey as totally unjustified, oppressive, extremely cruel and gruesome, arrogant, highhanded, barbaric and unconstitutional.

As earlier noted during the Tribunal hearing, the Respondent made no appearance despite receipt of summons. The evidence as adduced by the Complainant and his witnesses has remained challenged by the Respondent. I accept wholly the evidence adduced by the Complainant and his witnesses. Considering the evidence adduced by the Complainant, I hold that the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agent.

I therefore answer Issue I in the affirmative

#### I turn to Issue II.

In the instant case, the testimony of the Complainant and her witnesses is uncontroverted to the effect that she was shot by Policemen who had been deployed at Old Taxi Park. I have not found any evidence to suggest that the Police officers involved were on a frolic of their own. According to section 3 (1) (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.

An act may be done in the course of employment so as to make his master liable even though it is done contrary to the orders of the master, and even if the servant is acting deliberately, wantonly, negligently, or criminally, or

for his own behalf, nevertheless if what he did is merely a manner of carrying out what he was employed to carry out, then his master is liable (see Muwonge v. Attorney General [1967] EA 17; Okuda Clement and Attorney General UHRC/MRT/15/2004; Oketha Dafala Valente vs Attorney General HCCS 69 of 2004; Ekeju Jacob and Attorney General UHRC/S/233/2005; **Bagume John** and **Attorney** General UHRC/JJA/10/2007; Okia John & Emuge Joseph and Attorney General UHRC/SRT/208/2006).

On basis of the evidence availed to this Tribunal, I find that the Complainant has proved on the balance of probabilities that the Police officers involved the shooting did so in the scope of their duty and course of their employment for which the Attorney General is vicariously liable.

# The second issue too is therefore answered in the affirmative.

Having answered Issues I & II in the affirmative, the Complainant is entitled to a remedy the Tribunal deems fit and this may be payment of compensation or any other legal redress or remedy (see Article 8 of the Universal Declaration of Human Rights 1948; Article 53 (2) of the Constitution of the Republic of Uganda 1995; Enyimu Daniel and Attorney General UHRC/SRT/212/2007; Fred Biryomumaisho and Attorney General UHRC/253/2003).

It is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be physical inconvenience, mental stress, pain and suffering. (See Kampala District Land Board & George Mitala V Venansio Babweyana SCCA 2/2007; Assist (U) V Italian

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Asphalt & Haulage & Another HCCS 1291/1999; Moses Kizige V Muzakawo Batolewo [1981] HCB).

In the instant complaint the Complainant cannot be without the remedy of an award of general damages where it has been proved that she was unjustifiably shot by the Respondent's agents. The Complainant must have clearly suffered inconvenience as per testimony she stayed for about one month without working leading her to loss income. There was no evidence adduced before the Tribunal to guide the Tribunal on how much she lost in terms of income.

In considering the quantum of damages I will take into account the nature of injuries sustained by the Complainant and the impact on her life. The Complainant had wounds on the left temporal region, multiple wounds on the left arm, wounds on the left foot. CW I testified that he saw the Complainant after one week and she had a big wound on her hand which was bandaged. As earlier noted, a medical expert was not called before the Tribunal to interpreter ID 1 and 2. This would have guided the tribunal on the gravity of the injuries sustained by the Complainant.

I hereby order that the Respondent pay the Complainant a sum of Ug Shs $9,000,000/$ = (Uganda Shillings nine million only) as general compensation for the violation of her right to freedom from torture, cruel, inhuman or degrading treatment or punishment.

## **ORDERS**

Accordingly, the Tribunal orders as follows:

- (1) The Complaint is allowed. - (2) The Respondent is ordered to pay the Complainant a sum of Ug.shs. 9,000,000= (Uganda Shillings nine million shillings only) as general damages for the violation of her right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - (3) The sum shall attract interest at 10% from the date of this decision till payment in full. - (4) Either party shall bear its own costs.

Either party not satisfied with this decision may appeal to the High Court of Uganda within 30 days from the date hereof.

Dated at KAMPALA this $\mathcal{D}$ day of $\mathcal{D}$ 2018.

Miller win

**MEDDIE B. MULUMBA.** PRESIDING COMMISSIONER