Gahwera Sarah v Attorney General (Complaint UHRC 122 of 2008) [2018] UGHRC 7 (14 June 2018)


### THE REPUBLIC OF UGANDA

# UGANDA HUMAN RIGHTS COMMISSION TRIBUNALAT KAMPALA

### **COMPLAINT NO. UHRC/122/2008**

## GAHWERA SARAH :::::::::::::::::::::::::::::::::::

#### **AND**

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

#### **DECISION**

## (BEFORE HON. COMMISSIONER JOSEPH A. A. ETIMA)

This Complaint was brought before the Uganda Human Rights Commission tribunal by Gahwera Sarah the Complainant who alleges that on 25 September 2008 at around 7:00p.m while his son Solomon was walking in the company of a friend one Florence Kwagala; they met Policemen who held him by his shirt. That Solomon removed the shirt and started running while the Policemen were chasing and shouting that he was a thief. That Solomon's friend Florence followed after him but before she reached, they heard a gunshot and a certain boy informed her that Solomon had been shot. That when they reached the scene, they found Solomon had been shot dead by a Uganda Peoples' Defence Forces(UPDF) soldier Arinaitwe Benson who was guarding Brigadier Kashaka.

### **Issue for determination:**

- 1. Whether the Respondent's agent violated the Baguma Solomon's right to life. - 2. Whether the Respondent (Attorney General) is liable. - 3. Whether the Complainant is entitled to a remedy.

#### **Tribunal Hearings:**

I wish to state that this complaint was heard to conclusion by my former colleagues Commissioner Agaba Maguru (Mr.) and Justice (RTD) Gideon Tinyinondi (RIP). I will therefore decide the same basing on the record of proceedings as is on file.

The Tribunal held six (6) sessions to hear this matter. These hearings were attended by the Complainant, her witnesses and the Respondent (Attorney General) who was represented by Ms. Adong Imelda. The Complainant and witnesses adduced evidence wereall cross examined by Counsel for the Respondent. However, the Respondent did not present any defence or file submissions despite several adjournments to that effect.

#### **Resolution of Issues:**

# Issue 1: Whether the Respondent's agent violated BagumaSolomon's right to life.

The right to life is protected under Constitution of the Republic of Uganda as well as Regional and International human rights instruments to which Uganda is a signatory.

Article 6 of the International Covenant on Civil and Political Rights(ICCPR), 1966provides that the right to life shall be protected by law, and that no one shall be arbitrarily deprived of his life. This is reiterated underArticle 4 of the African Charter on Human and Peoples' Rights(ACHPR), 1986 whichprovides that human beings are inviolable, every human being shall be entitled to respect for his life and the integrity of his person, and that no one may be arbitrarily deprived of this right.

UnderUganda'sConstitution, the right to life is guaranteedunderArticle 22(1) 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.

InKatantazi Wilson . Vs. Attorney General, UHRC 57 of 2004, it was observed by Commissioner FM. Wangadya that the right to life is the most important without which all other rights and freedoms cannot be enjoyed; the sanctity of life commands maximum protection of every individual's interest in remaining alive.

The Complainant, Gahwera Sarah testified before the Tribunal thaton 25 September 2008 at around 7:00p.m, while she was at church, one of her sons Collin Busingye came to her running and told her that Solomon her other son had been shot. That as she was still trying to understand, her other son Ivan Kaswala came running and told her that Solomon had died. That she asked them where he had been shot from and they said that it was near church. That she ran to the scene and found Solomon lying down dead. That she then called for a "boda boda" cyclist to take her to Lubowa Police Station where she reported the case to the Officer in Charge, a one Ouma. That the Police rushed to the scene with a patrol vehicle and she rushed home to dress properly and contacted her people. That she went back to the scene but kept at a distance since many people had gathered. That the police officers told her that they were still looking for the person who had shot her son but later they told her that they had arrested the suspected killer. That the Police took Solomon's body on the Police patrol car to Mulago National Referral Hospital for post mortem examination which was done in her absence.

Ms. Gahwera further stated that on the next morning, she went back to Lubowa Police station and she was told that they had opened up a case of murder, she recorded a statement and the police told her to go and arrange for burial because a murder case would take time to be concluded. That the police told her that the man who shot the son was a UPDF officer Benson Arinaitwe who was guarding Brigadier Kashaka.

That after 4 days, she went back to Police and she was told that her file had been referred to Kibuye Police Station. When she went to Kibuye, she was told that investigations were still underway. After a while, she went back to Kibuye police station to check status of the case and she was told that it had been referred to Makindye Court. That she was told not to be concerned since the government lawyer was going to handle the matter. She was advised to report the matter to Uganda Human Rights Commission. That since the last time she was at Kibuye police station, she did not hear of her case again.

She prayed to be compensated for the son's death by the UPDF; her son was only 23 years old.

During Cross examination, the Complainant stated that her son was shot around the heart. That she saw on gunshot wound in the back. That the Officer in Charge Lubowa Police Station- Mr Ouma told herthat the person who shot her son wasArinaitwe Benson.

That she learnt that a telephone was lost at the victim's place of entertainment but did not know whether he was suspected. That she got all the information after her son's death. That she knew it was an offence to resist arrest. That she heard that he (Solomon) tried to run away. That shedid not know what happened. That the person who shot had no grudge with his son but should have targeted other parts not the heart which is fatal.

Upon re-examination, Ms. Gahwera stated that the Police explained to her the circumstances of her son's shooting.

CW1 Kwagala Florence testified and stated that on 25 September 2008 at around 6:30p.m, she was at Zzana town with her child, the late Solomon and his friend Emma. That they were all walking towards their homes. That all of a sudden, three gentlemen appeared and pulled Solomon's shirt. That Solomon was carrying our baby, so the baby fell down and her focus went on the baby. That Solomon removed his shirt and run away and the men chased him. That she took the baby to a nearby place and came back to find out what was happening. That as she followed, she heard a gunshot and that is when a certain boy came and told her that Solomon had been shot. That she rushed to the scene and found Solomon lying down with two (2) gunshots wonds. That he died in her presence. That the Police patrol car came and took away the body.

During cross examination, the witness stated that the three men that came did not have a gun and were in in plain clothes.

Upon reexamination she stated that she did not remember the boy who told her that Solomon had been shot.

CW2 Sekitoleko Peter stated that in 2008 on a date he could not recall, he was in an area called "Nfunfu" carrying on his "boda boda" businessat about 6:30 p.m when he met two Policemen and two (2) civilians chasing somebody. That they asked him to assist them arrest the person and he refused and continued on his way. That after dropping the passenger he had, followed the people running and found that the men had surrounded the person they were chasingin Musoga's compound. That he stopped but remained on his motorcycle and while there, an Army man in full combat came from a fenced home and shot the person from the side and he fell down. That when the people who had been chasing him realized that he had been shot, they just took off. That people gathered and called the area chairman whom they informed that the person who had shot the deceased had entered the fenced home. That he thereafter rode the motorcycle and left the scene. That he did not know the deceased but people started saying that it was Solo.

During cross examination, the witness stated that it was true that the deceased was surrounded by four people. That the soldier shot him at a distance. There were other people around. They raised an alarm but the person was already dead. That he had never given any statement to Police but only made a statement with UHRC people. That the soldier was in army uniform. He further stated that what he stated at tribunal was the truth and not what he had mentioned in his statement with Uganda Human Rights Commission (that the shooter was in civilian clothes). That after he was shot, he moved close to him, tried to talk to him but he could not respond. That he died in his presence.

CW3Seguya Joseph testified that in2008 on a date he cannot recall, around 6:00p.m. he was at Bunamwaya Nfufu when he saw a person running. That he then saw a man in army uniform opening a small gate and shot the man running. That he went near the deceased and he foundthat he knew him. That there were other people at the scene buthe could remember seeing a one Charles.

During cross examination, the witness stated that the deceased was shot dead at about 6:00p.m. That it was still bright. That he saw a man in army uniformopening the gate and shoot the deceased in the chest in front of him. That he did not know him or his rank. That at the time the deceased was shot; there were some people who work around the place. That he saw the deceased running but he did not know why. That he never bothered to ask why he was running. That he never made my statement at any Police station and he has never made any statement in any other place.

CW4 Mohammed Kimwerotestified and stated that he was a pathologist attached to Makerere University and Mulago National Referral Hospital. That he was also a private forensic medicine practitioner at Mayfair Clinic, Najjanankumbi. That he held a Master Medicine (Pathology) Makerere University 2012 and a fellowship of Pathology for East, Central and Southern African College of Pathologists. He also stated that he held a Bachelors of Dentistry Makerere University 2003 and had been working in Mulago since 2007.

$\mathsf{S}$

He stated that death certificate issued on 13 November 2008 was in respect of a one Solomon Baguma a resident of Zzana who was 23 years at the time. That he carried out the postmortem No. 1405/2008 which was written by himself.

That the Postmortem(Forensic Postmortem) was requested by Police and he it was carried out atthe City Mortuary in Mulago National Referral Hospital. That the condition leading to death was haemorragic shock- blood pressure being low that it could not supply the vital organs. That that was due to excessive loss of blood/ severe bleeding caused by gunshot wounds.

The Medical Certificate of the Cause of death in Respect of Baguma Solomon was admitted as Exhibit C1

As stated earlier, although the Respondent's Counsel cross examined the Complainant and her witnesses, shedid not call any witnesses or file Submissions. In absence of a defence, the tribunal deemed that the Respondent had waived his right for the same.

The Tribunal shall therefore determine the matter on evidence adduced as is.

As per the evidence of the Complainant, she stated that she learnt of the victim's death by information brought to her by her two sons Collin Busingye and Ivan Kaswala while she was at church. She thereafter rushed to the scene and found the victim lying dead. She therefore did not know the circumstances leading to the victim's death.

Section 59 of the Evidence Act Cap 6 provides that oral evidence must, in all cases whatever, be direct, meaning that if it refers to a fact which could be seen, then it must be the evidence of a witness who says he or she saw what happened; and in case it refers to a fact which could be heard, then it must be the evidence of a witness who says he or she heard it as it happened.

I will therefore only rely on the direct evidence of the Complainant and her witnesses. That is, the Complainant's evidence that she rushed to the scene and found the victim dead; evidence adduced by CW1 Kwagala Florence who was walking with the deceased when he was first arrested and later found him dead at the scene. CW2 Sekitoleko Peter and CW3 Seguya Joseph who saw the deceased running while Police officers were chasing him and also saw the Uganda Peoples' Defence Forces officer – Arinaitwe Benson emerge from the fenced home and shot him dead. CW4 Muhamed Kimwero who conducted a forensic postmortem on the deceased and confirmed that the deceased has suffered hemorrhagic shock and severe bleeding caused by gunshot wounds.

CW4's testimony reveals that the forensic examination was upon the request of the Police, who also went to the scene and picked the deceased's body and took it to Mulago National Referral Hospital.

Before I conclude this issue I wish to note thatSection 15 of the Criminal Procedure Code Act Cap 116 grants any private person to arrest any person who in his or her own view commits a cognizable offence or whom he or she reasonably suspects of having committed a felony.

I also note that Sections 42 to 45 of the Uganda Peoples' Defense Forces Act 2005provide that the UPDFcan offer aid to the civil power or authority and shall therefore have powers of a police officer (in addition to their powers) to prevent loss of life or serious damage to property or for other purposes as the public interest so requires.

In the instant case, CW2 Sekitoleko Peter and CW3 Seguya Joseph testified that while they were going about their business, they sawtwo policemen and two civilian men chasing the deceased and they stopped at a distance and watched what was taking place. That when the deceased was in a courtyard of a man called Musoga, an armed Uganda Peoples' Defence Forces soldier emerged from the a certain house, opened the gate and shot the deceased.

I find that the acts of the UPDF officer were irrational and unnecessary. First, the deceased was being chased by the Police about at 6:30p.m; he was not armed. It can be saidthat when this UPDF soldier heard the people chasing the suspect, he decided to release fire on him. Although the suspect partly contributed to his demise by resisting arrest and running away from the Police, the UPDF Officer was in a better position to apprehend him without shooting at him. First, he had the option of apprehending the suspect by confining his body, (2) shoot in the air by sounding a warning to the suspect, or (3) shoot to disable the suspect, as provided for underSection 28 (1) (c) of the Police Act Cap 303.

In the case of Tennessee Vs. Garner 471 US. 1 (1985), Garner (the suspect) was involved in a burglary and Police officers responded to a callfor the same. One of the officers went to the back of the house and saw the 15 year old Garner running away.

$\overline{7}$

He (Garner) ran across the yard and stopped at a chain-link fence and by use of a flashlight, the police officer could see that Garner was notarmed. The officer told him to stop buthe began to climb the fence. The officer shot Garner in the back of the head and died shortly. The Supreme Court held that "when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."

It was also found in **Graham V. Connor490 U. S. 386 (1989)** that use of deadly force to prevent escape is an unreasonable seizure under the law, in the absence of probable cause that the fleeing suspect posed a physical danger.

Based on the evidence adduced by the Complainant, I find that the deceased Baguma Solomon died as a result gun shots fired at him by a Uganda Peoples' Defence Forces Soldier who applied excessive, unnecessary and unreasonable force to ensure his arrest by Police officers. This therefore amounted to a violation of his right to life contrary to Article 22(1) of the Constitution of Uganda 1995.

#### Whether the Respondent (Attorney General) is liable. $$

I have already resolved that Baguma Solomon's right to life was violatedwhen the Uganda Peoples' Defense Forces officer shot him dead without appreciating the concept of seizure of suspects and use of arms on unarmed suspects.

Attorney General under Article 119(4) (c) of the Constitution provides is mandated to represent Government in any civil proceedings to which Government is party. Section 10 of Government Proceedings Act Cap 77 provides that all civil actions by and against the Government should be instituted by or against the Attorney General. Evidence adduced by the Complainant was to the effect that after the deceased was shot dead, she immediately reported the case at Lubowa Police Station. Her statement was recorded and a case of murder opened against the accused. The case was transferred to Kibuye Police Station where she followed up on several occasions only to be told that she should not be concerned with the case since the Government lawyer was going to handle the matter. That since 2008 until 2016, when this case was closed for judgment, she had not obtained justice in respect of the death of her son.

This therefore leads to the assertion that since the Police or the Uganda Peoples' Defence Forces did not prosecute the accused for the offence committed. This is highly condemned.

In the case of Muwonge. Vs. Attorney General [1967] 1 EA 17, Newbold P stated that; the law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are acts for which the master is to be held liable.

The acts of the Uganda Peoples' Defense Forces Officer were carried out in the course of his employment even though they were wrong and unauthorized by the employer. The Respondent Attorney General is therefore liable for the violation of Baguma Solomon's right to life.(See Ref:Jones . Vs. Tower Boots Co. Ltd 1997, ALLER 40 B)

#### Whether the Complainant is entitled to a remedy $$

The Complainant while presenting her complaint before the Tribunal prayed for compensation for the death of her son.

One of the functions of the Uganda Human Rights Commission under Article 52 and 53(2) (b) and c) of the Constitution is to investigate human rights complaints lodged by any person, and if it is satisfied that there has been an infringement of a human right, order payment of compensation; or any other legal remedy or redress.

Having held that Baguma Solomon's right to life was violated, I find that his family is entitled to a remedy of compensation.

In assessing the quantum of damages for this case, I will take into account matters previously decided by the Uganda Human Rights Commission Tribunal and the fact that the right to life is the most important without which all other rights and freedoms cannot be enjoyed, the fact that the sanctity of life commands maximum protection of every individual's interest in remaining alive.

In the case of Katantazi Wilson Vs. Attorney General, UHRC 57 OF 2004, the deceased was shot while he and his friends were being chased by two soldiers. As a result of the shooting, the deceased died in Mbale Hospital. Commissioner Mariam F. Wangadya found and awarded Ug.

Shs. 25,000,000= (Twenty five million Uganda Shillings) as adequate compensation to the family of the deceased.

In the instant case, the victim was aged 23 years and a student at that time. His death denied his mother and family a son, brother and friend. I thereforefind a sum of Ug. Shs. 35,000,000/-(Thirty five million Uganda Shillings) as adequate compensation for the violation of the deceased's right to life. I so award.

The Tribunal was not informed on whether the Deceased left behind any wife or child or was solely dependent on the Complainant; who in fact did not provide any further particulars to show that she is the biological mother. Im therefore uncomfortable to solely award the above amount to the Complainant. I will therefore award this amount to the estate of the late Baguma Solomon.

#### Order:-

- $\mathbf{1}$ . The complaint is allowed. - The Respondent (Attorney General) is ordered to pay to the estate of the late Baguma $\overline{2}$ . Solomona sum of Ug. Shs35,000,000 /- (Thirty five million Uganda Shillings) as compensation for the violation of Baguma Solomon's right to life. - The said amount of Ug. Shs 35,000,000 /- (Thirty five million Uganda Shillings) shall $\overline{3}$ . carry interest at a rate of 10% per annum from the date of this decision until payment in full. - Each party shall bear their own costs. $4.$

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date of delivery of this decision.

So it is ordered.

DATED AT KAMPALA ON THIS...

DAY OF...

Annk /2018.

**JOSEPH A. A ETIMA**

### PRESIDING COMMISSIONER