Kisule Siraji Kiiza v Attorney General (Complaint UHRC 161 of 2009) [2016] UGHRC 7 (24 November 2016)


# THE REPUBLIC OF UGANDA

# THE UGANDA HUMAN RIGHTS COMMISSIONTRIBUNAL

# **HOLDEN AT KAMPALA**

## COMPLAINT NO. UHRC/161/2009

KISULE SIRAJI KIIZA :::::::::::::::::::::::::::::::::::

-AND-

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

# BEFORE HON. COMMISSIONER JOSEPH A. A. ETIMA

#### **DECISION**

The Complainant brought this complaint against the Respondent seeking compensation for alleged violation of the right to life of his wife Auma Judith Jalia (deceased/victim). He alleged that on the 12<sup>th</sup> day of September, 2009, during the Buganda riots, his wife Auma Judith Jalia was hit by a stray bullet while at Kawempe Police Barracks. That she was rushed to Mulago Hospital where he was informed that the victim had died before reaching the hospital. That he was informed that there was heavy deployment of Police officers and soldiers around Bwaise and Kazo who were quelling rioters. He also alleged

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that a postmortem was done and it revealed that the victim died as a result of a gunshot.

The Respondent through a representative, Ms. Jane Frances Nanvuma denied the allegations.

#### **Issues**

The issues to be resolved by the Tribunal are:

- (i) Whether Auma Judith's right to life was violated by the Respondent's agents/servants - (ii) Whether the Respondent is liable for the violation of the deceased's right to life. - (iii)Whether the Complainant is entitled to any remedy.

Before I resolve the above issues I wish to state that this matter was entirely heard by a former member of the Commission, Comm. Thecla Kinalwa (RIP), I have therefore based this decision on her record of proceedings.

Furthermore, I note from the record that the Respondent did not call defense witnesses but filed written submissions in defense of the matter.

The Complainant retained the burden to prove his case against the Respondent to the required standard of balance of probabilities and in accordance with the provisions of the Evidence Act.

Section 101 (1) of the Evidence Act Cap 6 provides 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 the facts exist"

And 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.

## Issue1:

# Whether Auma Judith's right to life was violated by the state agents/servants.

The right to life is protected by the Constitution of the Republic of Uganda as well as the International and Regional human rights instruments to which Uganda is a signatory. To this effect, Article 3 of the Universal Declaration of Human Rights (UDHR) provides that everyone has a right to life.

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

In the Constitution of Uganda, the right to life is protected by Article 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."

The Complainant, Kisule Siraji (CWI) testified before the Tribunal that on the 12<sup>th</sup> day of September, 2009, at around 10:30 - 11:00am, while at Kawempe Police Station, he received a call from his colleague Olele Joel who informed him that his wife Auma Judith Jalia had got a problem and that he should go home. That he immediately went to Kawempe Police Barracks where he found her lying at a few meters away from the door way of their house. That blood was oozing out of her nose and that she could not talk. That he rushed inside the house to get bed sheets to take her to the hospital, but by the time he got them, a one Asindua and another person he did not recall had rushed the victim to Mulago Hospital, where he followed them immediately. That upon reaching Mulago, he met Asindua at the entrance and he informed him that by the time they reached, the victim had already died. That as the postmortem was being carried out, he went back to the Police Station to inquire from those who were there as to what had happened to his wife. That he found a one Ekwap Sarah who informed him that his wife was washing clothes when something like a stone hit her on the back. That Police officers and UPDF soldiers had been deployed around Bwaise and Kazo to quell the rioters. . He also stated that a postmortem was done and it revealed that the victim died as a result of a gunshot. That the deceased left 2 children aged 10 and 8 respectively and that they stay with their auntie. That the deceased was a teacher at Butaleja Primary School and a pillar in the home.

Upon cross examination, he stated that he is a police Constable and that it was Olere who called him on phone. That Asendua is the one who witnessed the postmortem. That he went back to Mulago Hospital and was given a death certificate and a postmortem report. He further stated that he is the one taking care of the two children who are in the custody of their auntie. That he was informed that the victim died on the way to the hospital.

**Asindua Kassian (CW2)** testified that he is a police officer (Detective Constable) and was attached to Kawempe Police Station in 2009. He stated that on 12<sup>th</sup> September, 2009, there were riots in the city and Bwaise after the police had stopped the Kabaka from going to Kayunga District. That a one Olere found him at Kawempe Police Station and informed him that the Complainant's wife, Auma Judith had collapsed and was vomiting blood. That he immediately went to the scene and found the victim bleeding through the mouth and nose, not talking and her breathing system had changed. That he immediately went to

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Bombo high way and found a good Samaritan with a saloon car who accepted to take the victim to the hospital. That together with a policewoman, they accompanied the victim, before reaching the hospital, he realized that the victim had died. That nevertheless they took her to Mulago Hospital where the doctors confirmed her death. That Kisule Siraje also arrived at Mulago immediately and he informed him that the victim had died and consoled him. That the body of the deceased was taken to the mortuary for a postmortem and that he was called to identify the victim and after sent out. That after the doctors called him and informed him that they had found a bullet entry wound on the deceased's back but no exit wound. That they told him that they opened the body and found a bullet on the right side of the chest, stuck in the lungs. That they showed him the said bullet and after it was given to the officer in charge of exhibits in the mortuary. That the death certificate and the postmortem report were given to the Complainant. He further stated that he went for the burial of the victim in Mayuge District. That the case concerning the death of the victim was registered at police vide CRB 41/92/2009, but he has never followed up to know the status of the matter.

During cross examination, he stated that it is true he rushed to the scene and rushed to look for a car, without knowing where Siraje was. He further states that he did witness the postmortem being carried out because he was sent out of the room. That the bullet was handed over to another officer and that he did not follow up the case which was registered at police. He also added that the riots were being quelled at a distance of 200-300 meters away from where the victim was shot from.

Ekwap Sarah (CW3) testified that on 12<sup>th</sup> September, 2009 at around 10:00am, Kisule's wife Auma commonly known as Maama Shamim was washing clothes at her veranda at Kawempe Police Barracks where they were neighbours. That she also sat on her veranda as the victim was washing. That she saw something falling on her back, but did not see which direction it came from. That she ran behind the house to see whether someone had stoned her,

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but did not see anyone. That she returned and found Auma crying for help while touching her back. That she made an alarm and also rushed to Kawempe Police Station where she met a police man who she informed. That they rushed back to the scene and found the victim lying at a few meters from her doorway and other people had gathered. That some policemen stopped her from saying that the victim was hit with a bullet, but she thinks that t indeed it was a bullet because policemen were shooting anyhow during the riots. That the victim was put in a vehicle, taken to Mulago and brought back when she was dead in a coffin.

Upon cross examination, she stated that Siraje has been her neighbour since 2006 at Kawempe Police Barracks. That when something hit the deceased back she ran behind the house to establish what it could have been. That she immediately run to Kawempe Police Station and informed a policeman what had happened. That she told the policeman that the victim was may be hit by a bullet but they stopped her from alleging so. She further stated that she thought the victim was hit by a bullet because there was a riot and a lot of shooting which was done anyhow.

Dr. Kalungi Sam (CW4) stated that he is a medical doctor attached to Mulago Hospital. He stated that he holds a Bachelors of Medicine and Bachelor of Surgery (MBCHB) from Makerere University (2000), Masters of Medicine, Makerere University, 2004, Phd from University of Bergen, Norway 2011 and a Diploma in Forensic Medicine in South Africa 2012. That he has been working at Mulago Hospital since 2001 and that he performs post-mortem among other duties. He testified that he signed the postmortem report which is Police Form 48B with serial number PM 1485/09. That on 12<sup>th</sup> September, 2009, the body was taken to Mulago Hospital by a one Asindua who identified it to be that of Auma Judith. That the postmortem was carried out and the body was found well nourished. That they found injuries on the body which included; a bullet entry wound in the mid line of the back in the middle 3<sup>rd</sup> rib. That the bullet had moved in the 1<sup>st</sup> and 2<sup>nd</sup> ribs through the right lung. That they also found

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1½ liters of blood in the right side of the chest. That a bullet was retrieved on the right side of the chest. That the cause of death was bleeding following wounds on the right lung as a result of a gunshot. That he signed the report and submitted it to the police. He further testified that he also authored the Medical Death Certificate of the deceased Auma Judith who died on 12<sup>th</sup>September, 2009 at 11:00am. That the interval between onset and death was bleeding due to wounds on the right lung following gunshot wounds. That he signed this certificate, stamped it and issued it on 1<sup>st</sup> October, 2009.

The certified copies of the postmortem report and Medical Certificate of death were tendered in as evidence and admitted as Exhibits 1 and II respectively. Counsel for the Respondent opted not to cross examine the he medical expert witness.

As already noted, Counsel for the Respondent did not lead evidence in defense but filed written submission in which she evaluated the evidence presented before tribunal implicating the police officers or soldiers to the shooting. She r submitted that the Complainant was not at the scene at the time of the alleged shooting, did not witness the postmortem being carried out and also got information from neighbours. That Sarah Ekwapu stated that she did not know what hit the victim's back and that she just thought it was a bullet because soldiers and police were shooting anyhow. She further submitted that Asindua Kassim CW2 was sent out of the room when the postmortem was being carried out, and as such he cannot confirm the cause of her death. She also submitted that the said bullet was never produced in Tribunal as an exhibit and that no witness testified as to which and whose gun it came from and that no one should conclude that it was a stray bullet.

I wish to refer to **Section 59** of the Evidence Act which 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,

$\overline{7}$ then it must be the evidence of a witness who says he or she heard it as it happened.

I find that part of the evidence by the Complainant regarding the circumstances that led to the victim's death are hearsay, which he confirmed that he was indeed informed since he was not at the scene at the time of the shooting. However, he stated that he saw the victim lying in front of the house with blood coming out of her nose and he also went to Mulago where he received copies of the postmortem report and medical certificate of death which he was able to read. The Complainant also participated in the burial of the victim and as such, Tribunal cannot just disregard what he witnessed.

I also find that the evidence of Asindua Kassim is relevant in identifying the possible perpetrators in this matter. He stated that on the day the victim was shot, the Baganda were rioting all over the city and Bwaise because police had stopped the Kabaka from visiting Kayunga District. That there was deployment of soldiers and police officers who were at 200 to 300 meters away from where the victim was shot from. Sarah Ekwepu CW3 also stated that there was a riot around Kawempe and Bwaise and that the soldiers and police officers were shooting anyhow.

It is therefore highly probable that the victim was indeed hit by a bullet from the gun belonging either to the soldiers or police officers deployed to quell the riots. Although no one was able to see who in particular shot the victim, the tribunal shall rely on circumstantial evidence which indeed should be corroborated. The Tribunal finds that the evidence by the medical doctor Kalungi Sam corroborates the evidence in regard to the cause of death of the victim. He testified that he found a bullet on the right side of the chest and that it had wounded her lungs. Counsel for the Respondent did not dispute this evidence at all and in her written submissions. Asindua Kassim stated that he saw the bullet after it had been removed from the victim's body and that it was given to the officer in charge of exhibits after. It is therefore not in dispute that

the Police officers and soldiers were quelling a riot near where the victim was shot from. It is also not in dispute that the victim died as a result of gunshot wounds on her lungs. It did not matter whether she was supposed to be washing her clothes on her verandah or in hiding during the riots, as counsel for the Respondent submits. What is clear is that the riots were at about 200 to 300 meters away as stated by Asindua. Other people also stayed in the barracks since the riots were not within the Barracks but outskirts of the Barracks.

I would like to categorically state that it is judicial notice that indeed there were riots which started on 10<sup>th</sup> September, 2009 to around 13<sup>th</sup> September, 2009 when police blocked a delegation representing the Buganda Kingdom from visiting Kayunga District in preparation for the National Youth Day, in which around 40 people were killed. It is not possible for all those who shot to be identified by witnesses but it is common knowledge that only armed and uniformed personnel were using fire arms on those mentioned dates.

The Tribunal also finds that the Respondent neither summoned defence witnesses nor led any evidence in defence to rebut the Complainant's evidence. I have accordingly evaluated the evidence on record and I find on balance of probabilities that the victim's right to life was violated by the Respondent's servants/agents contrary to Article 22 of the Constitution of Uganda.

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## Whether the Respondent (Attorney General) is liable for the violation of late Auma Judith's right to life

As resolved in the above issue, there was a violation of the deceased's right to life as a result of shooting by the security personnel deployed to quell the riots.

Article 119(4) (c) of the Constitution provides that the role of the Attorney General is to represent Government in any civil proceedings to which Government is party. Section 3 of the Government Proceedings Act Cap 77

provides that the Government is liable for the torts committed by its servants or agents. Section 10 of the same act provides that all civil actions by and against the Government should be instituted by or against the Attorney General, hence the principle of vicarious liability.

In the case of Muwonge Vs Attorney General [1967] 1 EA 17(CAK), 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.

Therefore, under the principle of vicarious liability, it is immaterial if the acts done by the servant are erroneous or unlawful or done without authority. The master will still be held liable if such acts are done in the course of their employment.

Similarly in the case of Jones Vs Tower Boots Co. Ltd 1997 ALLER 40 B the court held that 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

In the instant case the UPDF soldiers and police officers who were deployed to quell riots were at that time on duty and working for the state, and in fact were using government guns in the operation. Therefore it is proper for their master, (the state) as represented by the Attorney General to be held liable for their actions.

Therefore the Attorney General in this matter is vicariously liable for the violation of Auma Judith's right to life by state agents/servants.

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## Whether the Complainant is entitled to any remedy

Article 53(2) of the Constitution provides that: "The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

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

Having found that the deceased's right to life was violated, I accordingly find that her rightful beneficiaries are entitled to a remedy in form of compensation. In this respect as I will assess the quantum of damages taking into account the matters previously decided by the Uganda Human Rights Commission tribunal.

In Mugisha Juma Vs Attorney General, No. UHRC/FP/144/2003, former Commissioner Constantine K. Karusoke stated that

"... the compensation to the victim's family will be based on general damages caused by the anguish, loss and suffering imposed on them by the hitting to death of their only bread-winner and provider of fatherly love, affection, welfare and social protection. In addition to this the matter has dragged on for seven (7) years in this Tribunal during which time the victim's family has immensely suffered".

He awarded UGX Sh.35,000,000/= (thirty five million) as reasonable compensation to the victim's family for the deprivation of the right to life of a husband, father and provider in many respects."

In Katantazi Wilson Vs Attorney General, UHRC 57 OF 2004, Complainant contended that security personnel unlawfully shot and killed his son Mugalu,

in the course of their employment as servants of the State. Former Commissioner Fauzat Mariam Wangadya held that the right to life is the most important right without which all other rights and freedoms cannot be enjoyed. That the sanctity of life commands maximum protection of every individual's interest in remaining alive. Further that the killing of Mugalu permanently deprived his parents of a son and a friend, andtherefore an award of Ug. Shs. 25,000,000= (Twenty-Five Million Shillings) was found to be adequate compensation to the family of the deceased.

In the instant complaint, the deceased was still a young woman, aged 25 years and a primary school teacher. She left two children who were still minors at the time of her death. I must therefore take into account the fact that this is a double loss of a bread winner and a mother.

The Tribunal noted that the Complainant did not have Letters of Administration in respect of the estate of the deceased. It was also noted that the children were staying with their auntie and that the complainant has since remarried. It is also not clear as to whether the complainant was legally married to the victim since she was buried at her father's home. Compensation in this respect shall be paid to the estate of the victim, late Auma Judith for the benefit of her children and/or legal dependents prior to her death.

Having considered the above cases, I therefore award Ug. Shs. 30,000,000= (Shillings thirty million only) to the estate of the late Auma Judith for the violation of her right to life. I so award.

## **ORDER**

1. The complaint is allowed.

- 2. The Attorney General (the Respondent) is ordered to pay to the estate of late Auma Judith a total sum of U. Shs 30,000,000/ (Uganda Shillings thirty million) as general damages for the violation of her right to life. - 3. The said amount of U. Shs 30,000,000/ (Uganda Shillings thirty million) will carry interest at court rate from the date of this decision until payment in full. - 4. Each party shall bear their own costs.

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.

Nov DATED AT KAMPALA ON THIS

HON COMM. JOSEPH A. A. ETIMA PRESIDING COMMISSIONER