Lomise Lina v Attorney General (Complaint No: UHRC/MRT/23/2009) [2018] UGHRC 31 (12 June 2018)

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/23/2009**

**LOMISE LINA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT T, -AND-**

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

p*s*

*i*

## **j (BEFORE HON. COMMISSIONER MEDDIE . B. MULUMBA)**

## **, DECISION**

, The Complainant Lomise Lina a resident of Namwonicek village, Lokitela-ebu i parish, Kotido Sub-county, Kotido District alleges that in 2008 during the . J disarmament process, her husband the Late Lomuna Kolipus (decesed) was arrested by some youth and taken to Lokitela-ebu UPDF barracks. That she later went to the barracks in the evening and found him in detention. On the following morning when she took for him food she found him missing in the barracks. That the deceased's body was later discovered by some people near the MTN mast in Kotido Town. That the deceased was killed by UPDF soldiers at Lokitalebu, Kotido District.

This matter came up for 1st time hearing on 7th February 2013 before Commissioner Violet Akurut Adome. At the hearing, the Complainant was absent by the Respondent was represented by Counsel Lumbe Eric. When the matter came up for further hearing on 18th April 2013, the following issues were framed for determination;

- I. Whether the Late Lomuna Kolipus right to life was violated? - II. Whether the Late Lomuna Kolipus was subjected to acts of torture, cruel, inhuman and degrading treatment or punishment? - III. Whether the Respondent is liable? - IV. Whether there are any remedies available to the Complainant?

At the hearing Respondent Counsel prayed to have the matter amicably settled. The matter came up against for further hearing on 19th September 2013 but both parties were not present. On 19lh November 2013, the matter came up for further hearing but Respondent Counsel Lumbe Eric could not proceed with the hearing because he did not have the file. On 18th March 2014 when the matter came up, the parties prayed for an adjournment to explore amicable settlement. On 13th May 201, the matter came up for an update on amicable settlement, Respondent Counsel Lumbe Eric informed the Tribunal that he had initiated a loose minute but he had not received a response from the Solicitor General. When the matter came up again on 21st October 2014, the Complainant was absent because she had given birth. Respondent Counsel Sylvia Cheptoris informed the tribunal that she had not yet received a response from the Solicitor General in regard to amicable settlement. On 2nd December 2014, Respondent Counsel David Magomu informed the tribunal the he had not received a response from the Solicitor General. After efforts at amicable settlement had failed, on 10th March 2015, examination and cross examination was carried out on **CW I Adbilani Mohamad Lomwar.** On 2nd May 2016, examination in chief and cross examination was carried out on **CW II Lokwi Cham.** This was the close of the Complainant's case.

The matter came up before me for defence case on 17lh October 2017. At the hearing Respondent Counsel raised an objection to the hearings of this complaint.

He contended that the Tribunal had no jurisdiction to handle the matter since the officers involved in the death had been arrested and sentenced to serve sentences in Prison. On 8th November 2017 I made a ruling in which I overruled this objection. When the matter came up for defence on 4th April 2018, Respondent Counsel David Magomu prayed for another opportunity to have the matter amicably settled. On 21st May 2018, Respondent Counsel David Magomu informed the Tribunal that he had contacted the UPDF in regards amicable settlement but they had informed him to go ahead with the hearing. He prayed to file submissions since efforts at amicable settlement had failed.

This matter was mainly heard by Commissioner Voilet Akurut Adome and it is mainly from her proceedings that I arrive at this Decision.

Having laid down how the matter proceeded at Tribunal, I will now go ahead and resolve the Issues.

I will resolve Issues I and II concurrently.

The Complainant's testimony is that the Late Lomuna Kolipus is her husband. At around 7:00 am in 2008 while the deceased was going to the Kraal, he was arrested by UPDF soldiers. She was informed by someone who saw the soldiers arresting the deceased. Later in the day together with her co-wife Nangura, they went to Lokitaleabu army detach and found the deceased in custody. The deceased was normal and healthy. On the following day in the morning they went to the barracks to take food to the deceased but were instead chased away by the soldiers. Lodungo Tian who had also been arrested later informed them that Lomuna Kolpius had died and his body was being taken away to be thrown. They later moved around the bushes trying to search for the deceased's body but they did not find it. The deceased's body was later found near the MTN mast by Abduallah Lotiang. She did not go to the place where the deceased' body was found. Abduallah Lotiang later mobilized transport and the deceased's body was later taken for burial two days later. No postmortem was carried out on the body.

Upon cross examination she stated that she did not see anyone beating her husband.

CW I testified that the deceased is his uncle. On the fateful day when he returned home, he found the Complainant crying. Upon inquiring from her why she was crying, she informed him that someone had informed her that there was a dead body which resembled the deceased. He later went to the mortuary and identified the deceased's body. The deceased's body had bruises on the shoulders and his testicles were swollen. The deceased was later buried. A post mortem was not carried out on the body.

Upon cross examination, he stated that the deceased was beaten to death by soldiers who had arrested him. He did not see the deceased being arrested.

CW II testified that the deceased is his brother and was also LC I chairperson of his village. During the rainy season, their village was raided by UPDF soldiers. Together with the deceased and other village mates, they were arrested and taken to Lokitaleabu Army detach. Upon reaching the barracks, the soldiers begun beating them with short sticks asking them for guns. Later in the evening, the deceased was tied with rope and hanged on a tree while being beaten by the soldiers with sticks. The deceased died as a result of the beatings. The deceased's body was later carried away by the soldiers and put onto a vehicle and taken to Kotido.

Upon cross examination he stated that the deceased did not have a gun. He was a short distance from where the deceased was being tortured. The soldiers who tortured the deceased were arrested. The deceased died on the same day that he was arrested.

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 freedoms depends and its deprivation amounts to the elimination of the holder of these rights and freedoms. Once a person is in custody of the state he is totally powerless and his fate is squarely in the hands of the state. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person's right to life.

In his letter to the Commission dated June 2009, LT Col Muhanga - Commander HQ 405 infantry brigade states as follows;

- *1. It was on 16th September 20008 when a cordon and search operation was conducted in Lokitaleabu. As usual suspects were arrested and taken to Lokitaleabu Army Detach and among them was Lomuna Kolipus.* - *2. On 17th September 2008, he was found dead in the detach. The body was taken by Police for a post mortem report.* - *3. The case was thoroughly investigated whereby Lt Richard Watum, Pte Opio John, Pte Menya Martin, Pte Angufi Muzamil and Pte Benkya Edward were arrested, court martialed and convicted.* - *4. It was on 13th -14th October 2008 when the DCM sat in Kotido town at Court Hall. The session was public and open to everybody. Lt Richard Watum was sentenced to 14 years imprisonment while the rest of the soldiers were sentenced to 12 years imprisonment each.*

From reading this letter, it is therefore not in dispute that the Respondent's agents are responsible for the death of the deceased. As pointed out by Respondent Counsel in submission, the Respondent's agents who had a hand in the death of the deceased were ably prosecuted and competently handed sentences by a Court Martial which sat on the 13 and 14th October 2008. In his view, Justice was fully administered rendering any other fresh complaints or suits in respect of the Complaint illegal. It would be harsh to punish the Respondent twice after a thorough hearing of the case. Respondent Counsel also referred this tribunal to Article 53(4) (a) of the Constitution of the Republic of Uganda. For clarity, I will cite the relevant provisions of the law cited;

**Article 53 Powers of the commission.**

(4) The Commission **shall not** investigate—

a. any **matter which is pending before a court** or judicial tribunal;

He contends that the Commission having received the communication from UPDF HQ 405 Infantry Brigade Nakapelimoru Barracks Kotido that this complaint had already been ably and competently handled by the Court Martial in 2008, the proceedings in this complaint by the UHRC Tribunal ought to have been discontinued since their continuation was and is illegal. Respondent Counsel also referred this Tribunal to the Internal Memo dated 21st June 2010 in which UHRC Director Complainants and Legal Services advised the Regional Human Rights Officer Moroto Regional Office that if the perpetuators were tried by the Court Martial, then the Commission cease to have jurisdiction in the matter.

As is very well known, the function in the civil law is to compensate, while the function of the criminal law is to inflict deterrent and punitive penalties *(Esso Standard (U) LTD and Semu Amanu Opio SCCA 3/93).* In **Nestor Machumbi Gasasira vs Attorney General Constitution Reference 17/2011** which concerned whether or not the IGG can legally institute criminal charges under the Anti-Corruption Act while a civil appeal awaits in the Court of Appeal regarding essentially the same matter. The learned Justices held that "criminal and civil proceedings are distinct from one another. They are not in the alternative and/or necessarily parallel. In general, the remedies offered to victims of crimes through criminal proceedings do nothing to get them back to the state in which they were in, before the crime was committed against them. Similarly, civil proceedings do nothing to prevent future crimes from being committed by a person. As pointed out by the Court, a similar set of facts can lead to different causes of action and indeed remedies. Same facts by themselves is not a bar for a party to exhaust all available remedies open to them on the basis that this would amount to double jeopardy. The Constitution itself clearly defines double jeopardy as where one has been tried for a criminal offence and convicted or acquitted of that offence and as a result cannot again be tried for the offence, or for any other criminal offence".

There is a very clear distinction between human rights actions and criminal actions. Human rights claims just like civil proceedings determine the complainant's civil claims *(see also Joseph Zagyenda vs Uganda HCCM 3/2011).* The memo dated 21st June 2010 written by the Director Complainants and Legal Services was misdirection by the Director and her advice does not bind this tribunal. The fact that the soldiers were criminally held accountable since they were convicted of the offence of murder is not a bar for the Complainant or the estate of the deceased to seek damages violation for the violation of the right to life for the deceased. The issue before this tribunal is to establish whether the deceased's right to life was violated, for purposes of compensation to the family of the deceased. No evidence has been adduced by the Respondent's Counsel to show that the Complainant was awarded compensation in the same criminal trial. Therefore relying on the conviction of the soldiers in the criminal case, the deceased's right to life was violated *(see also Hajji Bumbakali Lukyamuzi vs Peter Muhairwe & 10 Others HCCS 36/1999).*

The actions of the Respondent's agents are condemned by this Tribunal. The Tribunal reiterates that Article 22 of the Constitution of the Republic of Uganda enshrines one of the most fundamental rights. 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. The subjection of the deceased to acts of physical torture which led to his subseguent death was a sharp contradiction of their duty to protect citizens. Although the deceased might have been arrested on allegations of being in possession of a gun, the soldiers had no legal justification to take away his life in such a brutal manner. The death of the victim did not fall within the exceptions outlined in Article 22(1) of the Constitution of the Republic of Uganda and as such was unlawful.

I therefore hold that the Late Lomuna Kolipus' right to life as protected under Article 22 (a) of the Constitution of the Republic of Uganda 1995 was violated by the Respondent's agents.

The first issue and second Issues are therefore answered in the affirmative.

After considering the Complainant's evidence and having held Issue I & II in the affirmative, I have no doubt that the deceased's right to life was violated by the UPDF soldiers attached to Lokitaleabu Army detach. The deceased was arrested on allegations of being in possession of a gun during the search and cordon operation No evidence was adduced by the Respondent to contradict the evidence of the Complainant's that the deceased was subjected to act of torture by its agents which lead to his death and that the UPDF soldiers were acting on a folic of their own. What UPDF soldiers did may not have been authorized by the Respondent, but it was done in the general course and scope of employment. The Respondent is accordingly liable for the actions 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 UHRC/FPT/50/2008; Babyesiza Godfrey and Attorney General UHRC/MBA/15/2008.*

The answer to Issue III 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. Having resolved Issue I, II and III in the affirmative, the estate of the deceased is entitled to compensation *[see the Universal Declaration of Human Rights (UDHR) Article 8; Articles 50 (1), 53 (2) (b) and (c) of the Constitution of the Republic of Uganda 1995; Bagume John and Attorney General UHRC/JJA/10/2007; Kansiime John and Attorney General UHRC/MBR/053/2008; Bashishana Francis and Attorney General UHRC/MBA/117/2005; Nyitho Alex Gelu and Attorney General UHRC/GLU/210/2004; Haruna Byamukama and Attorney General UHRC/130/2007],* In assessing compensation to the estate of the deceased, the tribunal takes into consideration that 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. In addition the deceased was subjected to acts of torture and died in the custody of the Respondent's agents.

The deceased was the LC I chairperson of his area and was the bread winner of his family and left behind 4 school going children who have since dropped out of school. The Complainant lost a husband. His community lost a leader. Presumably he still had much to offer to society and his family but his life was unlawfully shortened by the unlawful actions of the UPDF soldiers attached to Lokitaleabu army detach.

Having considered the evidence adduced before the Tribunal, the Respondent is ordered to pay to the Estate of the Late Lomuna Kolipus a sum of UGX 55,000,000/= (Uganda Shillings fifty five million shillings only) as general damages for the violation of his right to life.

## **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 Lomuna Kolipus a sum of **UGX 55,000,000/= (Uganda shillings fifty five million only)** as general damages for the violation of his right to life as protected under Article 22(1) of the 1995 Constitution of the Republic of Uganda. - 3. The said total sum of **UGX 55,000,000/= (Uganda Shillings fifty five million only)** 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 MOROTO this L?r......... day of 2018.

**MEDDIE B. MULUMBA PRESIDING COMMISSIONER**