Lomilo v Attorney General (Complaint No: UHRC/MRT/04/2009) [2017] UGHRC 29 (8 November 2017)

Full Case Text

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## THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION [UHRC] TRIBUNAL HOLDEN AT MOROTO COMPLAINT NO: UHRC/MRT/04/2009

LOMILO PAUL I::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

## -AND- 'l

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::;- RESPONDENT

## [BEFORE HON. COMMISSIONER MEDDIE ,B. MULUMBA]

## DECISION

Lomilo Paul [hereinafter referred to as the "Complainant"] brought this complaint against the Attorney General [hereinafter referred to as the "Respondent"] for the violation of his right to freedom from torture or cruel, inhuman or degrading treatment or punishment. The Complainant alleged that in October 2008 he was shot oh the: left I thigh by UPDF soldiers attached to Loputuk army detach who were driving animals from Lokurumu. That as a result he was admitted at St Kizito Hospital Matany where his leg was amputated and he now walks with the aid of crutches. The Complainant sought compensation.

The Respondent through representatives Lumbe Eric, David Magomu, Cheptoris Sylvia and Adong Susan denied the allegations.

Before I resolve the issues I wish to note that this matter was partly heard by former Commissioner Agaba Maguru. The matter came up for 1st time hearing on the 18th February 2014 before former Commissioner Agaba Maguru. At the hearing, the Complainant gave evidence in chief and cross examination was carried out. Respondent Counsel Lumbe Eric proposed to have the matter settled amicably. Respondent Counsel undertook to originate a loose minute to the Solicitor General for a possible amicable settlement.

On the 16th April 2014 the matter came up for an updated on amicable settlement but the Respondent was not represented. On the 11th November 2014 the matter caribe up for update on amicable settlement and Respondent Counsel David Magomu informed the Tribunal that Counsel Lumbe Eric had not originated a loose minute to the Solicitor General for a possible settlement. On the 23rd February 2015 Commission Counsel Angella Esther informed the Tribunal that a proposed settlement of UGX 25, 000, 000/= had been signed by the Complainant but was yet to be served upon the Respondent. On the 14th June 2016 the matter came up before me for update on amicable settlement. Respondent Counsel David Magomu who was holding brief for Ms Cheptoris Sylvia informed the Tribunal that he had no brief on how far amicable settlement had gone. A last adjournment was granted to the Respondent for amicable ! settlement. '

After efforts for amicable settlement failed, the further hearing of the matter continued on the 24th October 2016. Lotee Tebakwang [CW 1] was examined in chief and cross examined. The matter came up for further hearing on the 15th February 2017 examination in chief and cross examination was carried out on CW 2 Dr John Bosco Nsubuga and the Complainant's case was closed. On the 13th June 2017 the matter came up for defence but Counsel David Magomu who was holding brief for Counsel Racheal Nakabonge informed the Tribunal that Counsel Racheal Nakabonge who was in personal conduct of the matter had written to the Permanent Secretary Ministry of defence requesting for defence I witnesses but had not yet received a response. A last adjournment was thereafter granted for defence. Initially there were additional efforts to have an amicable settlement in October 2017 but when all the efforts failed the matter was set for decision. Since the

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matter has delayed and efforts at amicable settlement have failed, the Tribunal has decided to go ahead and determine the complaint based on the evidence on recqrd.

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Having given the above history on how the Tribunal process was conducted, I will now proceed to resolve the issues raised.

The Complainant testified in personal and adduced evidence of two witnesses to wit; CW 1 Tebakwang Lotee and CW 2 Dr John Bosco Nsubuga a medical doctor attached to Matany Hospital. The Respondent on the other hand did not adduce evidence of any witness to support in its defence but Respondent Counsel Adong Susan filed submissions in defence which I have considered in the resolution of issues. At the Ist hearing three Issues were framed and agreed upon by the both parties:-

- I. Whether the Complainant's right to protection against torture or cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agents? - II. Whether the Respondent is liable? - HI. Whether there is any remedy available to the Complainant?

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 1 defines "torture" means 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 hjm 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.

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In Uganda the right to freedom from torture or cruel, inhuman or degrading treatment or punishment is protected under Articles 24 and 44 of the Constitution of the Republic of Uganda.

In regards to Issue 1, the Complainant's testimony is that on a date and month he could not recall but in 2007 while at Natumukaiskou Trading Centre at around 5:00 pm he saw 10 [ten] UPDF soldiers driving about 30 animals towards Natumukaiskou. Some people who were following the soldiers and quarrelling with the soldiers as to why they had grabbed their animals. The said soldiers were in military uniform and holding guns. At the height of the quarrel and confusion the soldiers started shooting towards the people. In the process he was shot in the knee and as a result he fell down and his leg was completely shattered. He was then taken to Moroto Referral Hospital where he was admitted for five days and later transferred to Matany Hospital where he spent three days and his leg was later amputated. He was further admitted at Matany Hospital for one and a half months until he recovered. He was now disabled and cannot do much.

Tebakwang Lotee CW I testified that on a date he could not recall but on a Mpnday in October 2008 he went to Naitakwae market with the Complainant, Lomongin and other people. When they reached Natumukaiskou on his way back home he had gun shots. He saw the Complainant falling down. The Complainant had been shot on his left knee and the bullet had ruptured the knee cap. The Complainant was crying out saying that "I am dead for nothing". The soldiers were shooting in any direction as long as they were able to see people. Five minutes later an ambulance from Kidepo Health Centre and together with Lomongin they took the Complainant to Moroto Regional Referral hospital. One week later the Complainant was referred to Matnay Hospital where the Complainant's leg was amputated. The Complainant was admitted at Matany Hospital for two months and I after discharge, the Complainant could not walk and had to be supported'all time because he was weak. It took three weeks for the Complainant to start moving on his own but could not do anything for himself. Upon cross examination CW I stated that he

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did not see the exact person who shot the Complainant but he was confident tlyit it was the soldiers who carried out the shooting.

CW 2 Dr Nsubuga John Bosco testified that he was a medical doctor attached to Matany Hospital with an experience of II years. He was on call/duty at 11:00 pm on 11th October 2008 when the Complainant was brought into the Hospital from Moroto Hospital. The Complainant could not talk and had a high fever of 39.0 degrees Celsius. Upon examining the Complainant he discovered a tender swollen left lower limb which indicated a gunshot wound on the left knee. The Diagnosis was a gunshot wound on the lower left limb. An x-ray carried out revealed a fracture of the thigh bone. It was noted that the left leg from the foot was drying up and the muscles were stiff due t^ cutting off of supply of blood to the leg. The gunshot had damaged the blood vessels and blood was not being supplied to the lower leg which was in turn shrinking. An amputation which was the only option was recommended and carried out.

CW 2 further testified that in his opinion the Complainant would be able to walk again if an artificial limb was provided and this would depend on the Complainant and the physician who puts it. The Complainant would not be able to continue cattle trading since his movements have been compromised. Upon cross-examination by Respondent Counsel CW 2 stated that he was identify it was a gunshot wound because there was a small entry and large exit wound. He further clarified that the Complainant w^s not in the same state was before. The Complainant was admitted at Matany Hospital on the 11th October 2008 and discharged on 8th December 2008.

As rightly stated by the Respondent Counsel in her submissions the burden of proof is the Complainant to prove the allegations of against the Respondent's agents on a balance of probabilities [See 100-102 of Evidence Act Cap 6 and Issa Khakosi Wamusi vs Ben Mukhwana HCT-04-CV-CA-125-2012], 1 find that the Complainant's testimony is corroborated by CW 1 who was at the scene and clearly saw the UPDF officers shooting at the Complainant. When a party adduces evidence sufficient to raise a presumption

that what he asserts is true, he is said to shift the burden of proof; that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption [Arakit Mary Margaret vs The Attorney General HCCS 0699 of 2003; MTN [U] Limited vs Henry Kabaaie HCCS 504 of 2002; Kiggundu John Baptist vs Ndejje University HCCS 109 of 2015; Akugizibwe Amon and Attorney General UHRQ/FPT/47 of 2006].

In her written submissions, Respondent Counsel Adong Susan argued that the Complainant did not prove on a balance of probabilities that he was tortured. The shooting of the Complainant was not a calculated and intentional act and therefore the actions of the soldiers do not fall within the legal definition of torture. The Complainant clearly put himself in harm's way by wantonly and negligently following the soldiers with guns who were firing to disperse the crowd. She further submitted that the Complainant was partly to blame for his actions which led to his injury. At best the actions of the soldiers would entitle the Complainant to seek redress from a civil court for the tort of negligence which does not fall under the jurisdiction of the Tribunal.

The shooting of the Complainant by the UPDF soldiers and the nature of injuries sustained is not contested by Respondent Counsel. This means that it is not disputed that the UPDF (public officials] inflicted severe pain onto the Complainant, leading to an amputation of a leg. However what is in contention is whether this shooting was intentional as to falls within the elements of torture as provided under Article 24 of the Constitution of the Republic of Uganda.

To determine whether the shooting was intentional, I will look at the nature of- the injuries sustained and the weapon used. The Complainant sustained a gun shoot injury on his leg [knee]. When a soldier fires live bullets at a crowd, it cannot be said to be he does not intend to cause injury. I find that shooting a person on the leg clearly cannot be an unintentional act. The Complainant could not have been accidentally shot.

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Principle 4 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that Law enforcement officers in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. It can be clearly deduced in the testimony of CW 1 that it was civilians [without guns] who followed the UPDF soldiers. The UPDF soldiers could have used other nonviolent means to disperse the crowd which had gathered.

In Apollo Amon and Attorney General UHRC/2006 reported in UHRR [2008^2011] 103 the Tribunal having established on a balance of probabilities SPC Wagaba Godfrey had unjustifiably and internationally shot and injured the Complainant as he was leaving his home, it held that his actions amounted to cruel, inhuman and degrading treatment. The Tribunal further classified the actions of SPC Wagava Godfrey who shot Apollo Amon as totally unjustified, oppressive, extremely cruel and gruesome, arrogant, highhanded, barbaric and unconstitutional.

After carefully considering the evidence adduced and submissions of Respondent Counsel on this issue, I am unable to agree with the proposition advanced by Respondent Counsel. Therefore the Complainant's right to protection against torture qr cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agents.

## Issue 11: Whether the Respondent [Attorney General] is liable?

The law on vicarious liability as laid out in various cases is that an employer is only liable for acts of his servants or employees but not those who may masquerade as employees. The relationship of master and servant must be established and the servant must first be found liable. Then where the answer is positive the principal will be held to shoulder the ! servant's liability where appropriate {see Muwonge Vs Attorney General [196\*7] EA.7;

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Rhoda M Nambi kibirige vs Attorney General [1988 - 90] HOB 133; Otim Jimmy and Anor vs Attroney General SC Anor UHRC/G/344/2003: Bashishana Francis and Attorney General UHRC/MBA/117/2005].

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In Iwina vs Arua Town Council [1977] HCB 28 it was held that once it is proved that the servant was an employer of the master, there is a presumption that he was in the course of employment. The burden then lies on the master to prove the contrary. No evidence has been adduced before this Tribunal that the soldiers were acting on a frolic of their own. Therefore, I find the Respondent vicariously liable for their actions.

Having answered Issues I SC II in the affirmative, I will now turn to Issue HI; whether there is any remedy available to the Complainant?

I 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 and Article 53 [2] of the Constitution].

In the instant case, the Complainant is a young man of suffered serious injuries as a result of being hit by a bullet fired by the Respondent's agent. The Complainant at the time of the shooting was a cattle trader and his movements have been greatly hampered. Being in mind the above consideration the question left is on the quantum of damages and which other remedies [if any] are available to him.

The principle governing the assessment of damages is that the injured party ^Ijiould be awarded such a sum of money as will put that party in the same position as the party would have been in if the party had not sustained the injuries see: Robert Coussens Vs. Attorney General: SCCA No.8 of 1999; Businge David and Attorney General SC Asiimwe Yasin UHRC/FP/13/2006. It is trite that general damages are those which are not easily quantifiable in money terms. They are not specified in the claim, instead, the court decides how much the injured party deserves in compensation for his pain and suffering,

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which the court assumes the plaintiff did sustain. I do not hesitate to say that from the evidence before me, the Complainant suffered some loss as a result of the actions of the Respondent's agents.

In Okello James vs. Attorney General in HCCS No. 574 of 2003 the plaintiff was caught by a bullet in the buttocks which have been fired by Policemen who were trying to disperse a group of demonstrators around Uganda House on Kampala Road. The plaintiff was operated upon to remove the bullet and was awarded general damages UGX 15,000,000/=. In Babwetera Moses vs Attorney General UHRC/FPT/33/2008 the Complainant was awarded UGX 15, 000, 000/= [fifteen million shillings] after being permanently paralyzed for gunshot injuries inflicted upon him by police officers attached to Muhoro Police Post which left him permanently paralyzed in both legs.

Applying the principles to facts and circumstances of this particular case, taking into account the economic value of the Uganda shilling and the time it has taken for the Complainant to successfully pursue his rights to logical conclusion, i.e.; from September, 2005, when he filed this complaint, 1 would consider the figure of UGX 20,000,000 / = [twenty million shillings] to be fair and adequate recompose as general damages, and 1 award the same to the Complainant. 'l

The act of the UPDF soldiers shooting live bullets at random at Complainant was unconstitutional, arbitrary and oppressive is highly condemned by this Tribunal. The Respondent's agents acted contrary to their obligation under Article 221 of the Constitution of the Republic of Uganda 1995 that calls upon security organizations to observe and respect human rights at all times when performing their duties. As earlier noted, the Respondent's agents acted unconstitutionally and as deterrence, it must be condemned in exemplary damages. Exemplary damages are not to enrich the Complainant, but to punish the Respondent and deter it from repeating its conduct [SAM AKANKWASA vs ATTORNEY GENERAL HCCS 202 of 2013]. This case therefore falls within the category of cases in which exemplary damages may be awarded on top of general damages [see Dr. Nganwa William and Another Vs Attorney General,

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HCCS No. 640 of 2005; Matsiko Silagi Bernard and Mbagukire Peter vs AG HCCS No 383 of 2002; Nabukenya Margaret and Attorney General UHRC/JJA 103/2004; Okello James vs. Attorney General in HCCS No. 574 of 2003]. Exercising my discret'ipn upon the findings above, I condemn the Respondent to pay to the Complainant a sum of Ug.shs. 5,000,000= [Uganda Shillings five million] by way of exemplary damages. The respondent's agents should know that they are not above the law.

I will next consider whether the Complainant is entitled to special damages. On this issue Respondent Counsel submitted that the Complainant is only entitled to UGX 110, 000/= [one hundred thousand shillings only] as special damages. Respondent Counsel based her argument on three receipts which were submitted in evidence by the Complainant. In Friday Silver Emojong *SC* Peter Katongole vs Attorney( General UHRC/63/1998 Commissioner Marriam F Wangadya held that the law oA special damages is that the same must be specifically proved and the figure has to be definite. CW 2 testified that he spent Ushs 500, 000/= on the Complainant's treatment at Matanyi Hospital. In Rosemary Nalwadda Vs Uganda AIDS Commission HCCS No. 67/2011, Hon. Justice Steven Musota held that a claim for special damages must specifically be pleaded and strictly proved. A plaintiff had the duty to prove their damage. It is not enough to write down particulars, throw them to the Court and say "this is what I have lost I ask you to give me these damages". They have to be proved'. In this case three receipts dated 11/10/2008 in the amount of 50,000/=, 14/10/2008 in the amount of 50,000/= and 25/10/2008 in the amount of 10,000/= frorr^Matanyi Hospital were tendered in by the Complainant. 1 am reluctant to award UGX 500, 000/= [five hundred thousand shillings], it is not wholly supported by evidence. I therefore agree with Respondent Counsel that the Complainant is entitled to Ushs 110, 000/= in special damages.

Thousands of human beings who have been victims of human rights violations also face a range of devastating long-term consequences. In the instant complaint before me

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monetary compensation alone cannot be regarded as adequate redress. In light of this the tribunal therefore needs set things right and take a holistic approach. CW 1 testified that the Complainant who was a cattle trader at the time of the shooting and after amputation the Complainant can no longer do anything for him. CW 2 testified that the Complainant's mobility has been compromised and he needs an artificial leg with a joint. The Complainant's left limb was amputated as a result of the shooting. As noted from Respondent Counsel's submissions, the UPDF at all material times has and is still willing to acquire an artificial limb for the Complainant at NO COST [emphasis mine]. The Tribunal noted that long term victim-centered rehabilitation efforts are needed to restore the physical abilities of the Complainant.

Under Article S3 [2] [c] of the Constitution the Commission may, if satisfied that there has been an infringement of a human right or freedom, order any other legal remedy or redress [see also Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1984], Article 8 of the Universal Declaration on Human Rights [1948], Article 2(3] of the International Covenant on Civil and Political Rights]. Basing on the recommendations of CW 2, 1 therefore will not h'epitate in ordering the UPDF to provide the Complainant with an artificial limb with a joint within a period of three months from the date of this decision.

## ORDERS

This Tribunal orders as follows:

- [1] The Complaint is allowed. - [2] The UPDF is ordered to provide an artificial leg with a joint for the Complainant within three months from the date of this decision under the supervision of the Orthopedics department of Moroto Regional Hospital.

- [3] A rehabilitation report shall be filed with the Commission by the Orthopedics department of Moroto Regional Hospital be filed the first month after providing the artificial limb. - [4] The Respondent is ordered to pay the Complainant a sum of llg.shs. 20, 000,000= [twenty million shillings] as general damages for the violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agents. - [5] The Respondent is ordered to pay the Complainant a sum of llg.shs. 5, 000,000= [Uganda Shillings five million only] as exemplary damages for the violation of his right to freedom from torture or cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agpntsi - [6] The Respondent is ordered to pay the Complainant a sum of Ug.shs. 110, 000= [one hundred ten thousand shillings only] as special damages for the violation of his right to torture or cruel, inhuman and degrading treatment or punishment was violated by the Respondent's agents. - [7] The above total sum of Ug.shs 25, 110, 000/= [Uganda Shillings twenty five million one hundred ten thousand only] shall attract interest at 10 % p.a from the date of this decision till payment in full. - [8] 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 MOROTO this ........day of 2017.

MEDDIE B. MULUMBA. PRESIDING COMMISSIONER

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