Estate of the Late Okiror Oputan v Attorney General (Complaint No: UHRC/SRT/09/2008) [2019] UGHRC 20 (23 October 2019)

Full Case Text

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## **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL (UHRC) HOLDEN AT SOROTI COMPLAINT NO: UHRC/SRT/09/2008**

## **ESTATE OF THE LATE OKIROR JOSEPH OPUTAN::::::::::::: .-COMPLAINANT -AND-**

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

## **DECISION**

*(Before: Commissioner Meddie B. Mulumba)*

This complaint was initially lodged by Egou Charles (RIP) formerly a resident of Asamuk-Moru Village, Asamuk Sub County, Amuria District who alleged that in early January 2008, the Late Okiror Joseph Oputan (the deceased/victim) was arrested on allegations of defilement by policemen attached to Wera Police Post. That the deceased was charged in Court and remanded to

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Soroti Prison. That while on remand, the deceased was beaten and mistreated for allegedly refusing to go to work. That the deceased was later admitted in Soroti Hospital in a very critical condition and eventually died on 27/01/2008.

This matter came up for 1st time hearing on 13/10/2014 before Commissioner Violet Akurut Adome. The Respondent was not represented. The following issues were framed for determination

- I. Whether the Late Okiror John Oputan' s right to life was violated contrary to Article 22 of the Constitution of the Republic of Uganda 1995? - II. Whether the Respondent is liable for the violation of the above violations? - III. Whether there are any remedies available to the Complainant?

Examination in chief was carried out on Egou Charles - CW I and Stella Grace Asio - CW II. The matter came up on 18/02/2015 and 26/04/2016 but the Respondent was not represented. The matter was then reallocated to me for further hearing. The matter came up on 28/06/2016 but the Respondent was not represented. On

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1/11/2016 examination in chief was carried on Dr Epachu Pantaleo CW I while cross examination was carried out on the Complainant. As earlier stated this matter was partly heard by Commissioner Violet Akurut Adome and it is therefore partly from her record of proceedings that I arrive at this decision.

The Respondent as represented by State Attorney Lumbe Eric denied the allegations. The Respondent did not call defence witnesses. Learned State Attorney prayed to file written submissions in defence which have not been filed todate.

## **I will resolve Issues I and II concurrently.**

In his evidence in chief CW I testified that the deceased was his brother. In January 2008, the deceased was arrested by Community members on allegations of defilement. During arrest, the deceased was beaten by the community members. The deceased was taken to Wera police post. The deceased was subject to acts of physical torture at the police post. He did not see who beat the deceased. The deceased was briefly detained at Wera police post until the following day when he was transferred to Amuria Police Station. He did not know how long the deceased stayed in detention at Amuria Police Station. The deceased was later taken

to Soroti Prisons. After a few days he heard that the deceased had been beaten so much that he could not talk.

In cross examination he stated that the deceased was his younger brother who was 45 years at the time of his death. The deceased was married and left behind 2 children. The deceased was arrested by community members who took him Wera police post.

CW II testified that she is the deceased' s mother. The deceased was arrested on allegations of defilement. She went to Wera Police Post and found him in detention. She did not talk to him because he had lost his voice. She was told that the he had been beaten and possibly his throat had been squeezed. He was later transferred to Amuria Police Station. She later went to visit him at Amuria Police Station but she was informed that he had been remanded by Court to Soroti Prison. She then went to Soroti Prison but she was told that the he had been taken to Soroti Hospital. She went to Soroti Hospital and upon reaching there she found him admitted. He had wounds on the head, back, swollen mouth and blood on the nose. Moments later he passed on.

Upon cross examination, she stated that she was not present when he was arrested. She visited him in detention at Wera Police Station. She took care of him for 3 days at Soroti Regional

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Referral Hospital. She does not know the person who tortured him.

CM III testified that the deceased is her nephew. The deceased was arrested from Wera Trading Centre. She did not know why the he was arrested. Upon arrest the deceased was taken to Wera Police Station and later transferred to Amuria Police Station. The deceased was later admitted at Soroti Regional Referral Hospital. She went with CWI I to visit him at Soroti Regional Referral Hospital. They found him in a bad condition bleeding from the nose and with injuries on the head and back. He was handcuffed and guarded by a prison warder. They spent a short time with him in the hospital. He later passed on in the evening. On the following day they transferred his body to Asamuk Village for burial. A post mortem was carried out on his body before burial.

Upon cross examination she testified she was not present when the he arrested. She visited him in detention at Wera Police Post. He could not talk and was almost dying. They were told by policemen at Wera Police post to organize a vehicle and take his body home. She did not see any person beating him but was only told that he had been beaten while in custody.

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CW IV testified that he is medical doctor attached to Amuria Health Centre IV. He interpreted Exhit I. A post mortem examination was carried out on the deceased on 28/01/2008. In his opinion, subcutaneous blood collection can be caused by torture, accident or use of a blunt object.

Upon cross examination he stated that the post mortem examination was carried out by Dr Kababa whom he once worked with. He did not know whether Dr Kababa was a pathologist.

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 *[see Article 3 of the Universal Declaration of Human Rights 1948, Article 6 (1) of the International Covenant on Civil and Political Rights 1996, Article 4 of the African Charter on Human and Peoples Rights].* The right to life is the cornerstone on which the realization of all other rights and

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Let me restate the cardinal principles of a law upon which courts base to make their findings. Firstly, the Legal burden of proof on every issue in the offence charged rests with the Complainant and secondly, the standard of proof is on a balance of probabilities. See: Sheik Hussein Mayanja and Mubiru Christopher Kisingiri HCCS 129 of 2010.

It is trite law that once a person is in custody of the state he is totally powerless and his fate is squarely in the hands of the state. Where a death does occur in state custody the burden is on the detaining authorities to provide a satisfactory and convincing explanation as to the cause of death and a narrative of the medical treatment (if any) they administered to the deceased prior to his death *(see Kats and Others vs Ukraine [2008] ECHR 1742).* In the absence of such explanation, Article 24 of the Constitution of the Republic of Uganda 1995 is breached. See: Edwards v UK (2002) 35 EHRR 19; Anguelova v

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Bulgaria, App. No 38361/97, 13/06/2002; Aksoy v. Turkey, ECHR 100/1995/606/694; Salman v. Turkey ECHR No 21986/93; Irumba Johnson and Attorney General UHRC/FPT/07/2006; Mariam Nakijjoba and Attorney General & Beatrice Isiagi UHRC/446/2001; Nakirya Sarah and Attorney General UHRC/116/1998; Irene Nawase & Abas Mayengo and Attorney General UHRC/JJA/75/2004,

From the evidence on record, the deceased was arrested in January 2008 on allegations of defilement. Upon arrest, the deceased was taken to Wera Police Post where he was briefly detained until the following morning when he was transferred to Amuria Police Station. CW I did not see who beat the deceased. CW II visited the deceased in detention at Wera Police Station. The deceased was physically fit but she was only told that the deceased had been beaten and possibly his throat had been squeezed.

CW III visited the deceased at Soroti Regional Referral hospital and observed that he was in a bad condition bleeding from the nose and with injuries on the head and back. From the testimony of CW III although the deceased was admitted at Soroti Regional Referral hospital he was handcuffed and still in detention of the prison authorities.

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The medical evidence as contained in "Exhibit 1" (postmortem report) (PF48 B) shows that the deceased died of subcutaneous blood collection. CW IV who testified explaining the findings on the postmortem report (PF 48) stated that the deceased' s body had a swollen upper hand and subcutaneous blood collection in various parts of the body. The deceased died of subcutaneous blood collection which can be caused by torture, accident or use of a blunt object. The deceased died in the hands of the Respondent' s agents. The Respondent has not provided any evidence to explain the circumstances of the deceased' s death.

**The first issue is answered in the affirmative.**

After considering the Complainant' s evidence and having held Issue I in the affirmative, I have no doubt that the deceased' s right to life was violated by the Prison authorities attached to Soroti Prison. The Respondent is accordingly liable for the action of its agents: See: Section 3 (1) (a) of The Government Proceedings Act Muwonge vs Attorney General [1967] EA 17; Komakech Charles vs Attorney General HCCS 21 of 2001; Sarah Watsemwa Goseltine & Anor vs Attorney General HCCS 675 of 2006; Thunderbolt Technical Services vs Apedu Joseph & Kk Security (U) Limited HCCS 340 Of 2009; Opio Pamena and Attorney General

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## UHRC/FPT/50/2008; Babyesiza Godfrey and Attorney General UHRC/MBA/15/2008.

**The answer to Issue II is therefore in the affirmative.**

I now turn to the last Issue.

Where a human rights violation has been committed, the Complainant is entitled to a remedy which may include compensation. Having resolved Issue I, II and III in the affirmative, the Complainant entitled to compensation. Seej\_ Articles 50 (1), 53 (2) (b) and (c) of the Constitution of the Republic of Uganda 1995 [see the Universal Declaration of Human Rights (UDHR) Article 8. In assessing compensation to the Complainant, the tribunal takes into consideration that the life is priceless and the right to life enshrines one of the basic values of democratic societies, the sanctity of life commands maximum protection of every individual' s interest in remaining alive a prerequisite to the enjoyment of all other rights and that death is final and irreversible. See.- Edison Oluka and Attorney General UHRC/S/61/2005.

CW I testified that at the time of his deceased, the deceased was 45 years, married and had 2 children. The family of the deceased was permanently deprived of the deceased who was a breadwinner for his family. The Respondents breached their statutory duty under Article 221 of the Constitution to respect human rights in the performance of their duties at all times and as such the Respondent is liable to pay compensation. See: Irene Namwase & another and Attorney General UHRC/JJA/75/2004.

Taking into consideration all relevant matters, I award the estate of—t-he—La-te—Es-t-a^te of Late Okiror Joseph Oputan a sum of **UGX 50,000,000/= (Uganda Shillings fifty million only) as** general damages for the violation of his right to life as protected under Article 22 (1) of the Constitution.

## **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 OKIROR JOSEPH OPUTAN** a sum of **UGX 50,000,000/= (Uganda shillings fifty million only)** as general damages for the violation of his right to life as protected under Article 22 (1) of the Constitution of the Republic of Uganda 1995.

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- 3. The said sum shall carry interest at 10% per annum from the date of the decision until payment in full. - 4. Each party shall bear its own costs.

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 SOROTI this day of . . . . . . . . . . . . . 2019.

**MEDDIE B. MULUMBA PRESIDING COMMISSIONER**

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