Kisakye Maureen v Attorney General (Complaint UHRC 19 of 2010) [2017] UGHRC 12 (14 February 2017)


# THE REPUBLIC OF UGANDA

# IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL **HOLDEN AT KAMPALA COMPLAINT NO: UHRC/19/2010** KISAKYE MAUREEN:::::::::::::::::::::::::::::::::::

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

# [BEFORE HONOURABLE COMMISSIONER STEPHEN BASALIZA]

## **DECISION**

### **Brief facts**

The Complainant brought this complaint before the Commission seeking for compensation for violation of her right to freedom from torture or cruel, inhuman or degrading treatment by the respondent. She informed the tribunal that on $11^{th}$ September, 2009 while on her way home from St. Augustine church in Seeta at Gwafu village, she was shot in the chest by a uniformed UPDF soldier where she sustained severe injuries. She brought this complaint seeking redress from the Commission.

The respondent as represented by Mr. Batanda Gerald denied the allegations.

#### **ISSUES:**

The following issues were framed and agreed upon by the parties:-

- 1. Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated. - 2. Whether the Respondent (Attorney General) is liable for the violations. - 3. Whether there is any remedy due to the Complainant.

The testimonies of the parties and their witnesses are relevant in determination of the above issues.

The Complainant testified that on the 11<sup>th</sup> September 2009, she and a one Ahimbisibwe had gone to attend a prayer meeting at St. Augustine Church in Seeta when they were informed that there were gunshots in the area and were advised to go back to their homes. That on their way back home, they were met by an armed and uniformed soldier who stopped her and shot her in the chest with her hands raised up. That she lost consciousness as a result of the shooting and when she regained consciousness, she was taken to hospital where the doctors informed her that she had been shot. She further testified that as a result of the shooting, she suffered internal bleeding that the doctors had to insert a tube through her ribs in order to suck the blood out and she had severe pain on her right hand side and in the joints.

The Complainant's medical documents and X-rays from Nsambya Hospital were tendered in and accepted into evidence for Identification and marked I. D.1 and $$

The Complainant's witness Ahimbisibwe George CW1 testified that on the 11<sup>th</sup> September while he and the Complainant were coming from a fellowship at St. Augustine church in Seeta at around 6.30 pm, he saw burning tires in the nearby Trading Centre following the Buganda riots. That as they moved along the opposite direction, they found a UPDF soldier in a camouflage uniform hiding behind a perimeter wall who approached them while pointing a gun at the Complainant and started shouting and accusing them of being complicit to the chaos which they denied. That even when they informed the soldier that they were from the fellowship, the soldier shot the complainant in the chest. He further testified that when he tried to help the Complainant who had been shot, the soldier shot the ground four times around the witness' feet to scare him off. That there were other people whom he could not identify and that the soldier ordered them to leave the Complainant behind alone and forced them to move to BIVA yard at the Trading Centre, where they were ordered to remove shirts and other soldiers started beating them until their boss ordered them to stop beating them and released them. That he then contacted the Complainant's husband and together with him, they took the complainant to a clinic in Seeta and then Mukono where the complainant condition could not be managed and were referred to St. Francis Hospital Nsambya. He further claims that he went to see the Complainant after three days, and subsequently a month later where the Complainant still appeared unwell, traumatized and could not speak properly.

I note that the Respondent did not present any witnesses but only cross examined the complainant and her witnesses through its Counsel.

#### **Resolution of Issues**

# Issue No. 1: -Whether the Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated.

The Universal Declaration of Human Rights under Article 5 prohibits violation of the right of freedom from torture or cruel, inhuman or degrading treatment or punishment. The International Covenant on Civil and Political Rights also, under Article 7 prohibits the same.

Furthermore, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN CAT) which was adopted by the United Nations in 1984, and has also been signed and ratified by Uganda, does not only totally prohibit violation of the same human right but also, stipulates that the right is non-derogable, by providing as follows:

"No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

At the Regional level, the African Charter on Human and Peoples' Rights that was adopted by the Assembly of State and Government of the Organization of African Unity in 1981, reiterates the same under Article 5 of the total prohibition of torture. The Constitution of the Republic of Uganda of 1995 under Article 24 provides that "no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment". And under Article $44(a)$ the Constitution states categorically that "there shall be no derogation from the enjoyment of the right of freedom from torture and cruel, inhuman or degrading treatment or punishment".

## Torture is defined under Article 1 of the UN CAT to mean

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

In the case of *Olupot Stephen and Attorney GeneralUHRC/S/91/2003* Commissioner Veronica Eragu Bichetero highlighted the elements of torture from the definition as contained in Article 1 of the United Nations Convention against Torture, Cruel, Inhuman and Degrading Treatment or Punishment (UN CAT) to include; the infliction of severe mental or physical pain or suffering, by or with the consent or acquiescence of state authorities and for the specific purpose such as gaining information, punishment or intimidation.

#### The presiding Commissioner further held that;

Torture is characterized and distinguished from other forms of ill treatment by severe degree of suffering. Cruel treatment or punishment in legal terms refers to ill treatment causing varying degree of suffering less severe than torture. Forms of ill treatment other than torture do not have to be inflicted for a specific purpose, but there must be intent to expose individuals to the conditions which amount to or result in ill treatment.

I wish note that although the Respondent cross examined the Complainant and her witnesses, he didn't produce any evidence to rebut the complainants claim nor did he submit any submissions to this Tribunal. However the above notwithstanding it should also be noted that the burden of proof lies upon the person asserting that his rights or her rights have been violated, in this case, Kisakye Maureen. This is in line with section **101** of the Evidence Act Cap 6which states that;

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

#### Further, under S.102 of the Evidence Act:

"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".

According to the Complainant, she testified that on the 11<sup>th</sup> September 2009 she was shot in the chest with her hands raised up by a uniformed UPDF soldier during the Buganda riots that took place around Seeta-Mukono. That she lost consciousness as a result of the shooting and when she regained consciousness, she was taken to hospital where the doctors informed her that she had been shot. She further testified that the shooting caused her internal bleeding where the doctors had to insert a tube through her ribs in order to suck the blood out and that she suffered from pain on her right hand side and in the joints.

The Complainant's evidence was corroborated by CW1's testimony in which he also testified that on 11<sup>th</sup> September, 2009, he was with the complainant when the UPDF soldier approached them and shot the complainant in the chest. Upon crossexamination, he confirmed that the Complainant was not hit by a stray bullet but was shot at close range by a UPDF soldier whom he recognized from his UPDF madoadoa (Camouflage) uniform. The Respondent sought to challenge CW1's testimony in relation to identification of the shooter in which CW1 stated that he was able to identify the soldier because he was uniformed and was in close range with the soldier and during re-examination he also described the complainant's state of health after she was shot and stated that the complainant was unwell, traumatized and could not speak properly.

The Expert witness Dr. Lukyamubi Kizito, who also treated the Complainant interpreted the Complainant's medical report which was authored by Doctor Nakabuye Betty whom he supervised in treating the Complainant. He testified and supported the complainant's evidence that the medical report indicated that the complainant was admitted on 11<sup>th</sup> Sept, 2009 with gunshot wounds. He also testified that the complainant had difficulty in breathing, exhibited weakness and blood loss. He further stated that the complainant's medical history on the medical report showed that she had been shot by a man in army uniform and that the records further indicated that the patient suffered wounds on her breast, chest, and forearm and was also bleeding from her nose and that she was very sick, very pale with cold extremities which the doctor interpreted to mean the patient was in shock, dehydrated and bleeding. That the injuries sustained by the complainant on chest, lungs, right breast and right forearm were classified as grievous harm and those sustained on her forearm were classified as **harm**. During examination in chief, the complainant requested for the expert witness to tender into evidence two documents signed and certified by himself in regard to the complainant's treatment which the Respondent's Counsel objected to citing that the expert witness had no authority over the documents tendered. I however allowed the medical document since the expert witness was the supervisor of the attendant and he was also involved in treating the complainant. I have carefully examined the evidence before me and aware that Counsel for the Respondent challenged the complainant's and his witnesses' testimonies through intensive cross examination in which he sought to imply that the Complainant well knowing that there were riots in the area with security agents quelling the same chose to put herself in danger and thus assumed the risk. I do not agree with Counsel for the Respondent in his assumptions of voluntary risk which is applicable as a defense in tort as opposed to the issue at hand and thus cannot stand. And as I already -noted, torture is totally inexcusable according to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cited above) which stipulates that the right is non-derogable, by providing as follows:

"No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Respondent Counsel also challenged the truthfulness of the complainant's testimony where she claimed that she was shot at close range as opposed to the statements made to the hospital that she was struck by a stray bullet. However, CW1 corroborated the complainant's evidence where he testified that he witnessed the shooting and confirmed the complainant was shot by the soldier at close range. I also note that the Medical expert informed this Tribunal that at the material time when the complainant was admitted on the 19<sup>th</sup> September 2011 with gunshot wounds, she was very sick, in shock, pale and dehydrated. It is common knowledge that patients who sustain bullet wounds tend to fall into shock and from the information given to the doctors at the time of admission, it's clear that the complainant was still in shock and therefore statements made while she was under

these circumstances cannot outweigh the complainant's testimony and an eye witness account of CW1 which were made when they were in a better state of mind.

Counsel for the Respondent also challenged the Complainant's testimony in reference to the identification of the soldier who shot her and tasked her to reveal the name of the soldiers and Counsel for Respondent relied on the fact that UPDF officers have name tags on their uniforms. The complainant stated that she was not able to read the names on the tag at the material time but informed this tribunal that she identified the UPDF officer from the army green uniform which he wore. CW1 also corroborated the complainant's assertions and stated he also identified the soldier by the UPDF camouflage uniform which he was wearing. CW1 further testified that the complainant was shot around 7P. M where it was impossible to read the tag but there was enough light to see the camouflage uniform, CW1 stated further that the soldier instructed him and others he couldn't identify to go to the trading centre where they were ordered by other soldiers to undress and beaten until their leader instructed the soldiers to release them. I also note that Respondent counsel in his cross examination of the complainant and his witnesses', was in agreement with the complainant that security agents were in the area of Gwafu village –Mukono to quell the Buganda riots from which I inferred that in light of the heavy presence of UPDF in the said area and in light of the other evidence presented by the complainant, it is highly probable that the complainant was shot by a UPDF soldier.

In light of the above evidence and facts before me, Iam satisfied that there is ample evidence supporting the Complainant's claim that on the 11<sup>th</sup> September 2011, she was shot by a UPDF soldier when she was un armed and therefore on a balance of probabilities, I answer the issue above in the affirmative.

Issue No. 2: Whether the Respondent (Attorney General) is liable for the violations.

Article 119 of the Constitution of Uganda provides that the functions of the Attorney General shall include among others, to represent the Government of Uganda in courts or any other legal proceedings to which the Government is a party.

In the case of *Muwonge Vs Attorney General*, (1967), (EA) 17, Justice Newbold P. in his judgment, held 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 for which the master is to be held liable.

Similarly, in the case of *Jones Vs Tower Boots Co. Ltd*, (1997) All E. R 40 B, court held in its judgment as follows: An act is within the course of employment if it is either: $(1)$ a wrongful act authorized by the employer, or $(2)$ a wrongful and unauthorized mode of doing some act authorized by the employer.

The complainant has to the satisfaction of this Tribunal and on a balance of probabilities adduced evidence in support of her claim that a UPDF soldier shot her while she was unarmed which violated her right to freedom from Torture. The complainant's evidence has convinced this Tribunal that at the time of this incident, the UPDF were deployed in the area of Gwafu village –Mukono to quell the Buganda riots and where the complainant was shot from.

I therefore hold the Respondent and in this instant complaint the Attorney General for the actions of the state agent who in line of carrying out his duties, violated the complainant's right to freedom from torture, cruel, inhuman and degrading treatment or punishment.

## Issue 3; Whether there is any remedy due to the Complainant.

Article 53 (2) of the Constitution states that the Uganda Human Rights Commission may, if satisfied that there has been an infringement of a human right or freedom, order—

- (a) the release of a detained or restricted person; - (b) payment of compensation; or - (c) any other legal remedy or redress.

Article 8 of the Universal Declaration of Human Rights provides that

"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."

In Christopher Ssajabi Nsereko and Attorney General UHRC No.112/99 Commissioner F. Mariam Wangadya observed that indeed human rights and freedoms would serve no purpose if their violations did not attract redress to the victims.

In this Complaint, it has been proved to the satisfaction of the Tribunal that Kisakye Maureen's right to freedom from torture or cruel, inhuman and degrading treatment or punishment was violated. Accordingly I find that the Complainant is

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entitled to compensation. The only question left is what quantum of damages or compensation is the Complainant entitled to.

of Isabirye Kiwule V Attorney General, Complaint $In$ the case UHRC/J/35/2003, Commissioner J. M Aliro-Omara laid down points to consider when granting compensation for breach of a Complainant's freedom from torture or cruel, inhuman and degrading treatment or punishment:-

- a) The nature of torture and injuries sustained by the Complainant and the impact on his life if any - b) The fact that this right is absolute as stipulated in Article 44 of the Constitution. - c) The innocence of the complainant - d) Where possible, previous awards in cases or complaints of a similar nature.

The evidence adduced clearly indicates that the torture on the Complainant was a calculated, cold and intentional act where the Respondent's agent shot the complainant who was un armed. The actions committed against the complainant were arrogant, high-handed, barbaric and impossible to justify, considering that the right of freedom from torture, cruel, inhuman and degrading treatment is absolute. Torture is a serious breach of citizen's rights. It was also the expert witness's testimony that although he categorized the Complainant's operations fairly successful with a possibility of her living a normal life, she was bound to experience some difficulties.

Taking into account all the above circumstances, plus the physical and mental suffering experienced by the Complainant, the inflation rate, the Tribunal considers a sum of Ug Shs $10,000,000/$ = (Uganda shillings Ten Million) as reasonable compensation for the violation of the Complainant's right to freedom from torture or cruel, inhuman and degrading treatment or punishment.

The Tribunal finds the Attorney General liable for the violation explained in this decision and orders that the Complainant be compensated as follows:-

## **ORDER**

The complaint is allowed.

- (1) The Respondent pays the Complainant a total sum of UGX.10,00,000/ $=$ (Uganda Shillings Ten Million) broken down as follows: - (2) UGX.10, 000,000/- (Uganda shillings Ten Million) being compensation for the violation of the Complainant's freedom from torture. - (3) The total sum of UGX. 10000, 000/ shall attract interest at Court rate from the date of this decision till payment in full.

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 ....................................

Bazanse

**STEPHEN BASALIZA** PRESIDING COMMISSIONER