Masereka v Attorney General (Complaint No.UHRC FPT/25/2006) [2017] UGHRC 21 (15 February 2017)


# **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL HOLDEN AT FORT PORTAL COMPLAINT NO. UHRC FPT/25/2006**

MASEREKA BENEDICTO ::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

-AND-

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::: RESPONDENT

### *BEFORE COMMISSIONER HON. Rtd.) JUSTICE GIDEON TINYINONDI*

#### **DECISION**

The Complainant brought this complaint against the Respondent seeking compensation for alleged violation ofthe right to life of his son Pte. Dekule Martin (deceased/victim). He alleged that on the day he cannot remember, the body of his son, Pte. Dekule Martin, was brought to his home by UPDF soldiers from Masindi. They informed him that the deceased had stolen a gun. That he saw the body and observed wounds on the neck. He further stated that he did not know the circumstances under which his son died and the cause of death.

The Respondent through his representative, Ms. Karungi Betty Gafabusa, denied the allegations and opted to put up a defence.

#### **Issues**

The issues to be resolved by the Tribunal are:

- (i) Whether Pte. Dekule Martin's right to life was violated by a State agent. - (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 mostly heard by different members of the Commission: F. M Wangadya, Akurut Violet Adome Q and Joseph. A. A Etima. I have therefore based this decision on their record of proceedings.

Furthermore, I note from the record that the Respondent called defense witnesses and filed written submissions in defense of the matter. The Respondent attempted to settle this matter amicably but this never yielded any fruits despite the adjournments made for this purpose.

The Complainant retained the duty to prove his case against the respondent to the satisfaction ofthe tribunal on a balance of probabilities and in accordance with the provisions ofthe Evidence Act and Rule 23(1) ofthe UHRC rules.

Section 101 (1) ofthe 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' '

Under S.102 ofthe 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.

## **Issue 2: Whether Pte. Dekule Martin's right to life was violated by the state agent(s):**

The complaint lodged by the Complainant was about the alleged violation of Pte. Dekule Martin's right to life, which is also protected by the Constitution of the Republic of Uganda as well as the International and Regional human rights legal instruments to which Uganda is a signatory. To this effect, Article <sup>3</sup> of the Universal Declaration of Human Rights (UDHR) provides that everyone has a right to life, and **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 further 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,* adding that *every human being shall be entitled to respectfor his life and the integrity of his person, and no one may be arbitrarily deprived ofthis right.*

The right to life is also protected by Article 22(1) of the 1995 Constitution of the Republic of Uganda 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."

**Masereka Benedicto (Complainant)** testified before the Tribunal that on the day he cannot remember, the body of his son Pte. Dekule Martin was brought to his home by UPDF soldiers from Masindi who informed him that the late had stolen a gun. That he saw the body of the late and observed wounds all over the neck. He further stated that he did not know the circumstances under which his son died and the cause of death. He further told the tribunal that his son left a widow, Vumi, who has since left the marital home and abandoned their three children, all minors Q who are under his custody.

Upon cross examination, he reiterated that he neither knew the cause of his son's death nor the person who stole the gun. That he was only informed by soldiers that the late had fallen in a pit.

**Kambasu Obadia (CW1)** stated that he was a soldier attached to Field Artillery Division in Masindi District since 2002. He testified that the late Pte. Dekule Martin was his friend whom he shared a house (room) with. That in June, 2004, while attending a survey course at Butiaba Training Wing, they (the late and Kambasu) decided to go to buy books to use. That upon their return to their room, they discovered that Pte. Dekule Martin's gun was missing. That they immediately reported to 2nd Lt. Achar Bernard, the Course Commandant, who called a parade. That he ordered him and late Dekule to remove their clothes and remain in the underpants which they complied with. That 2nd Lt. Achar Bernard ordered other soldiers to get sticks and beat them up. That three soldiers who included Bwambale Emmanuel, Nyamwamba Barnabas and Ndihabwe Edson, beat them all over their

bodies with sticks for about 6 hours without stopping. That 2nd Lt. Achar then kicked Pte. Dekule in the ribs and he died instantly. He further stated that the missing gun was later recovered in the bush by Ndihabwe Edson after the death of Dekule.

During cross examination, he stated that Sgt. Ndihabwe Edson is the one who had hidden the gun because he had a grudge with Pte. Dekule over a woman. Tie further stated that Pte. Dekule Martin was beaten for about 5 hours and that 2nd Lt. Achar kicked him in the ribs.

**Bwambale Asasio (CW2)** testified that on 26th June 2004 at around 10:00pm, he received a phone call from Kambasu Obadia who informed him that Pte. Dekule had died at Masindi Army Barracks after being beaten on the orders oftheir boss. He stated that the body of Pte. Dekule was brought the following day at around 2:00pm at his father's home. That he was among those who removed the body of Pte. Dekule from the coffin and viewed it carefully. That he saw wounds on both sides of the deceased's ribs and noted the dislocation of the left jaw which had turned towards the right side. That the deceased was buried that same day at around 6:30pm and that UPDF contributed lOkgs of sugar, 20kgs of beans and 50kgs of maize flour towards the burial ceremony. That the deceased left one wife who has since remarried and three children who are in the custody of their grandfather.

During cross examination, he stated that he learnt of the deceased's death on 25th June, 2004 from Obadia who informed him that the victim had been beaten to death. He maintained that he personally undressed the deceased's body and established that he had been beaten.

**Dr. Batenga George (CW3)** stated that he is a medical officer attached to Masindi General Hospital where he was at the same time the medical superintendent. He stated that he holds MBCHB from Makerere University in 1992, a Diploma in physiotherapy M. O. H 1992 among others. He testified that his duties included clinical and administration work. He informed the tribunal that he neither carried out a postmortem on the deceased nor authored the report reference GIF/076/FAD/04 presented before him, but that would offer to interpret the same. He also added that he could not authenticate the postmortem report as having been authored from Masindi Hospital since it did not bear the name of the author. That he searched through the hospital records of 2004 and even contacted the District Health Officer but both failed to establish the author ofthe said postmortem report, since they could not connect the signature on the postmortem report to any medical personnel. He was of the opinion that the postmortem report could have been authored by a person not authorized to do so since it lacked precise and clear information on the cause of death. He stated that the injuries described in the postmortem report could not have caused death. He stated that the postmortem report reference GIF/076/FAD/04 was made at the request of UPDF Special Investigations Branch SIB/FAD Masindi and it revealed that the body of the deceased was taken to Masindi Hospital by army officers at 8:30am but the date was not documented. He further stated that the name of the person who identified the body was not known since it appeared to have been erased.

The said photocopy of the postmortem report was not tendered in as evidence and Counsel for the Respondent chose not to cross examine this witness.

The Respondent presented two defense witnesses who included Lt. Col. Augustine Bagendaho and Captain Kamanzi John, both from UPDF. Counsel for the Respondent also filed written submissions in defense ofthis matter.

**Lt. Col. Bagendaho (DW1)** testified that he did not know anything about this matter, but upon receiving the summons to come to the tribunal, he caused an investigation and tasked Captain Kamanzi John to investigate and furnish him with a report. That Cap. Kamanzi managed to record statements from two people Kambaso Obadia and Cap. Achar who were at Field Artillery Training Unit - (Butiaba Training School) by then.

Upon cross examination, he stated that he was not the one who carried out the investigations, and that the two statements recorded had contradictions in regard to the circumstances surrounding the death ofPte. Dekule Martin.

The two statements of Kambasu Obadia and Cap. Achar were admitted for identification purposes and marked "R. I. D.1" and "R. I. D 2" respectively. Counsel for the Respondent prayed to call Captain John B. Kamanzi and Cap. B. O. Achar but only Cap. John Kamanzi appeared.

**Cap. John Kamanzi (DW2)** testified that he had served UPDF for 24 years and that he did not know the late Pte. Dekule Martin before. But he testified that the late was serving in the 9th Field Artillery Department in Masindi where he was ' undergoing level three survey training before his demise. That he was instructed by the Director Special Investigations Branch (SIB) Lt. Col. Bagendaho, to carry out investigations in this matter and that he recorded two statements from Pte. Kambasu Obadiah and Capt. Achar who were by then at a 2nd Lieutenant rank. That from the statements, he established that a gun belonging to Pte. Kambasu Obadiah went missing and that the two suspect (Kambasu and Dekule) were subjected to interrogation. That before the gun was discovered, Pte. Dekule fell down and started bleeding through the ears. That they carried late Dekule to the staff room and continued with the search of the gun. That Pte. Dekule died from the staff room and that a postmortem was carried out and that Kambasu was admitted in hospital.

Upon cross examination, he stated that the gun was recovered but he was not sure whether it was recovered before or after the death of Pte. Dekule Martin. He added that he was told that when the gun was recovered, Dekule fell down.

Counsel for the Respondent submitted that the evidence of the Complainant Cl should be disregarded since he did not know the circumstances which led to the death of his son. Section 59 ofthe Evidence Act 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, then it must be the evidence of a witness who says he or she heard it as it happened.

This Tribunal finds that the evidence by the Complainant regarding the circumstances that led to his son's death cannot be relied on since he was not at the scene where he died. However, this Tribunal will accept the part of evidence about what the complainant saw, such as the dead body of the deceased and the wounds on his neck. The same applies to the evidence by CW2 Bwambale Asasio who stated that he saw the body ofthe deceased and that it had wounds on the ribs. The rest of the information they received form others will be treated as hearsay. From

what the above two witnessed on the body ofthe deceased, I find that the deceased never died of natural causes. This was corroborated by the evidence of Kambasu Obadia CW1 who testified that he was also beaten together with the late Dekule when the gun went missing. He also stated that 2nd Lt. Achar kicked the deceased on the ribs and he died instantly.

Counsel for the respondent further submitted that the evidence of Kambasu Obadia should not be relied on because provided contradicting evidence in his testimony to the Tribunal and the statement recorded by Cap. Kamanzi John, thus depicting him as <sup>a</sup> liar. That he told the Tribunal that the gun which went missing belonged to the Q deceased and that in the statement recorded later, he stated that the gun belonged to him.

The Tribunal notes that the recorded statements were admitted only for identification purposes, and as such, the same will be treated for the same since they were not recorded under oath. This evidence is therefore of less value in this matter since the statements were not tendered in by the witnesses themselves. I will also treat the evidence by Cap. John Kamanzi and Lt. Col. Bangendaho Augustine as hearsay since they were both informed of what happened. The respondent never summoned Cap. Achar to testify before the tribunal and never summoned any other defense witness to rebut the evidence of the complainant in regard to the cause of death of the deceased. However, the Tribunal only learnt that the said defense witness and another were reported to have died before testifying before the tribunal. However, the evidence of the information regarding their death was not presented before the tribunal and there is no evidence whatsoever to prove that they died. Nevertheless the Tribunal will consider the evidence presented before it in determining this matter.

This Tribunal will also not rely on the evidence of Dr. Batenga George since the postmortem report was not admitted as an exhibit due to lack of authenticity from the author and contained ambiguous findings therein.

The Tribunal has accordingly evaluated the evidence of both the Complainant and the Respondent and finds that the late Pte. Dekule Martin died as a result oftorture by 2 Lt. Achar Bernard and other soldiers. The Tribunal therefore find on balance of probabilities that Pte. Dekule Martin's right to life was violated by the respondent's agents contrary to Article 22 ofthe Constitution of Uganda.

## **Issue No. 2: Whether the respondent (Attorney General) is liable for the violation of late Pte. Dekule Martin's right to life**

As resolved in the above issue, there was a violation ofthe deceased's right to life as a result oftorture by 2nd Lt. Achar Bernard and 3 other soldiers.

It is also important to note that the deceased having died in the custody of the Respondent's agents, the burden shifted to the Respondent to give a plausible explanation ofthe circumstances of his death (Akdeniz and Others v Turkey 2001 ECHR page 349).

**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] <sup>1</sup> 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 ofcarrying out what he was employed to carry out, then his acts are actsfor which the master is to be held liable.*

Therefore, in 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 ifsuch acts are done in the course oftheir 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 ifit 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 who subjected the deceased to torture leading to his death were at that time on duty and working for the state, and in fact were searching for the missing government gun. These UPDF soldiers were identified by Kambasu Obadiah who was also a victim oftorture for the same reason.

Therefore the Attorney General in this matter is vicariously liable for the violation ofPte. Dekule's right to life by state agents the UPDF soldiers.

## **Issue 3: Whether the complainant is entitled to any remedies**

Article 53(2) ofthe Constitution provides that: ''The Commission may, ifsatisfied that there has been an infringement of a human right or freedom order(a)

(b) payment of compensation; or

(c) any other legal remedy or redress."

In this respect as I assess damages, I am taking into account the complaints 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) 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 oftheir employment as servants ofthe 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, and therefore an award of Ug. Shs. 25, 000,000= (Twenty-Five Million Shillings) was found to be adequate compensation to the family ofthe deceased.

In the instant complaint, the deceased who was still a young man, left three children who were still minors at the time of his death, and are now under the care ofthe complainant who is elderly and a peasant. Their mother was reported to have left the family and remarried. I must therefore take into account the fact that this double loss of a bread winner must have created serious problems and challenges for these children.

The tribunal noted that the complainant did not have letters of administration in respect of the estate of the deceased. Compensation in this respect shall be paid to Q the estate of the victim, late Pte. Dekule Martin. Having considered the above cases, I therefore award Ug. Shs. 30,000,000= (Shillings thirty million only) to the estate of Pte Dekule Martin for the violation of his right to life. Whoever shall present letters of administration shall be entitled to administer this sum.

I therefore order as follows:

## **ORDER**

The complaint is allowed.

The Attorney General (the Respondent) is ordered to pay to the estate of late Pte. Dekule Martin a total sum of U. Shs 30,000,000/ (Uganda Shillings Thirty million) as general damages for the violation of his right to life by state agents.

The said amount of U. Shs 30,000,000/ (Uganda Shillings Thirty million) will carry interest at court rate from the date ofthis decision until payment in full.

Each party shall bear their own costs.

Any party dissatisfied with this decision or any part thereofmay appeal to the High Court ofUganda within 30 days from the date ofthis decision.

So it is ordered.

DATED AT FORTPORTAL ON THIS .... DAY OF. 2017

**SIGNED BY:**

**HON (RTD.) JUSTICE GID TINYINONDI PRESIDING COMMISSIONER**