Margaret Namalwa v Bulera Sub County (Complaint UHRC 10 of 2006) [2017] UGHRC 8 (16 November 2017)


## THE REPUBLIC OF UGANDA

# IN THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) TRIBUNAL

## **HOLDEN AT KAMPALA**

## COMPLAINT NO: UHRC/10/2006

MARGARET NAMALWA::::::::::::::::::::::::::::::::::

### **AND**

# BULERA SUB COUNTY:::::::::::::::::::::::::::::::::::: (BEFORE HON. COMMISSIONER JOSEPH A. A ETIMA)

#### **DECISION**

The Complainant Namalwa Margaret of Kimuli village-Kyamusisi, Bulera Sub Country Mityana district lodged this complaint with the Commission alleging that on 22<sup>nd</sup> August 2002 Local Defence Unit men and Local chiefs of Bulera Sub County shot dead her husband Noah Kamya while they were carrying out a graduated tax operation during the night. The Complainant contends that the killing of Noah Kamya amounted to violation of his right to life for which she seeks to hold the Respondent Bulera subcounty vicariously liable and seeks compensation.

# **Issues to be determined by the Tribunal are:**

- 1. Whether Noah Kamya's right to life was violated by the Respondent's agents. - 2. Whether the Complainant is entitled to any remedies.

Before I resolve the above issues I wish to note that the matter had twelve hearings. The Respondent was only represented once in the fifth hearing where in Counsel for Respondent the Gideon Arinaitwe informed the tribunal that his colleague Drabo Lillian had informed him that they had prayed for amicable settlement and hence sought an adjournment to seek instructions to proceed. The tribunal adjounrned the matter on several occasions for the Respondent to appear in vain.

The above notwithstanding, the Complainant retained the duty to prove her case against the Respondent to the satisfaction of the tribunal, on the standard of a balance of probabilities. This is in line with Section 101(1) of the Evidence Act Cap 6, which provided that

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

**Section 102 of the Evidence Act further provides that**

"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.

Issue One: Whether Noah Kamya's right to life was violated by the Respondent's agents.

The right to life is protected by Article 22(1) of the Constitution of the Republic of **Uganda 1995** which provides as follows;

"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 the sentence has been confirmed by the highest appellate court"

This right is also broadly protected by various international human rights instruments to which Uganda is a signatory.

Article 6 of the International Covenant on Civil and Political Rights (I. C. C. P. R) precisely provides as follows;

"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

Similarly Article 4 of the African Charter on Human and Peoples Right (A. C. H. P. R) States as follows; "human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of his life."

For the Complainant to sustain a case of violation of Noah Kamya's right to life, she has to prove;

- (a) that the Respondents agents caused the death of Noah Kamya, and - (b) that Noah Kamya's death was caused unlawfully.

Margaret Namalwa testified that on 23<sup>rd</sup> August 2002 the tax collectors and Sub County parish elders went to their home, called her husband Noah Kamya but he did not respond immediately. That they hit and broke the bedroom window using a stick and also hit his neck through the window. That the Sub county chief and others opened the door of the house, the LC1 Chairman Majwala William was the first to enter and was followed by other armed men from Bulera Sub County. The Chairman ordered Kamya to get out but he could not because he was in a lot of pain. One of the armed men shot at Kamya 3 bullets while he was lying on his bed in his bedroom. One bullet remained in the leg and the other two shattered his legs and hit a metallic case. After the shooting, the Chairman and his crew went out and started discussing among themselves; and thereafter carried Kamya (who was crying in pain and bleeding) from the bed unto a truck carrying other tax defaulters. That later at around 9am, she was informed that Kamya had died; the parish officials brought home Kamya's body and ordered for its immediate burial. The police recorded statements and took photos of the body and a post mortem report was made. She further testified that the deceased died at the age of 32, he was a business man and a peasant farmer; he left behind 9 children, at that time the first born was about 12 years and the youngest 3 years.

The Complainant's witness Kabanda Samuel testified that he cannot recall the date but in August 2002 around 1:00am, the parish chief from Bulera Sub County, the LC1 chairman, a security guard knocked on his door, he opened and that they demanded for a tax ticket receipt. He had some old tickets which he showed them but he did not have

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the latest so he was ordered to sit down, tied with ropes and put on a truck. That they then moved to Kamya Noah's place. Escorted by armed men, the LC1 Chairman Mr. Majwara knocked at Kamya's door when Kamya peeped through the window and saw that there were many people outside he instead closed the window. There was a piece of wood in the compound which the parish chief used to open the window. Later, a young girl opened the door, the parish chief and four others entered and he heard them asking for tax tickets, after which he heard three gun shots. That Kamya was later dragged out of the house but could not walk because he was bleeding from the legs. He and other tax defaulters were told to carry Kamya to the sub county truck which they all boarded; driven to Kyamusisi town then later to Bulera Sub County. The deceased went pleading for help on the way; on reaching the Sub County the Parish chief got another vehicle which took him and the deceased to Mityana police station. The parish chief and the security man went to make a statement, at that time the health of the deceased started deteriorating. He was ordered, in the company of a police man to take Kamya to hospital and as soon as they reached the hospital and placed Kamya on the bed, he passed away; his body was then taken to the mortuary. He added that after that he went and reported to the police that Kamya had died. The parish chief bought a coffin, gave them transport and they took the body to the deceased's home. They found when the chairman had run away from the village and the deceased was buried the following day.

A post mortem report was tendered in and admitted by the tribunal as an exhibit. According to the report, the presumed cause of death were bullet wounds that caused hemorrhagic shock.

At the close of the Complainant's case the Respondent neither presented any defence nor filed submissions despite several adjournments for this purpose.

I will therefore make a finding basing on the testimonies of the Complainant, her witness Kabanda Samuel and the postmortem report. It is my finding that the deceased Noah Kamya died as a result of gunshot wounds that he had suffered during an operation for graduated tax collection by Bulera sub-county.

As already stated above the Respondent did not offer any evidence to rebut that adduced by the Complainant.

The Complainant's evidence remained unchallenged on that note, I find the Respondent liable for the violation of Noah Kamya's right to life.

The Local Government Act, Cap 243, defines Local Council under section 1(h) to include Lower local government and the Sub county council among others. Section 6 of the same Act further provides that the Local Government Council is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name and may, subject to the provisions of the Constitution enjoy, or suffer anything that may be done, enjoyed or suffered by a body corporate. Thus with regard to the above provisions Bulera Sub county is vicariously liable for the acts of its agents the local chief, chairman and LDU's who brutally violated Noah Kamya's right to life.

# **Issue two: Whether the Complainant is entitled to any remedy**

According to Article 53(a)(b) and (c) of the Constitution, the Commission may if satisfied that there has been an infringement of a human right or freedom order the payment of compensation or any other legal remedy or redress.

Article 8 of the Universal Declaration of Human Rights provides that a person who claims that a fundamental right guaranteed by the constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation.

In the case of Edison Oluka and Attorney General Complaint No. UHRC/S/61/2005; Mr. Obwangor's right to life was violated by the state and his family was awarded compensation by way of damages.

This matter does not differ from the instant matter whereNoah Kamya's right to life was violated.

Consequently having held that Noah Kamya's right to life was violated by Bulera sub county, his family is entitled to compensation.

In assessing the quantum of damages to be awarded as compensation, I will consider the fact that the deceased died a painful death. He was shot during a law enforcement exercise, to arrest graduated tax defaulters; he pleaded for help though out the journey to Bulere sub-county, Mityana Police station and then hospital where he died upon arrival. This was an extra-judicial killing. The deceased died a young man, he was a bread winner and still had much to offer to his family in terms of physical and moral support. Bearing the above observations and the overall circumstances of the events leading to the complaint in mind, I find Ug. Shs $40,000,000=$ (Fourty million shillings) as sufficient compensation for the violation of Noah Kamya's right to life. I so award.

# ORDER:

- 1. The Complaint is allowed. - 2. The Respondent Bulera Sub county is ordered to pay the Administrator of the **Estate of Noah Kamya** a sum of Ug. Shs 40,000,000= (Fourty Million Shillings) as compensation for violation of his right to life. - 3. Interest at 10% per annum to be paid on the mentioned amount calculated from the date of this decision until payment in full. - 4. Each party shall bear their own costs.

Either party dissatisfied with this decision may appeal to the High Court of Uganda within 30 days from the date hereof.

$16$ <sup>th</sup> ......day of $\mathcal{N}$ 2017 Dated at **KAMPALA** this ......

**JOSEPH AA ÉTIMA**

PRESIDING COMMISSIONER