Musana and Another v Attorney General (Complaint No. UHRC SRT/120/2008) [2016] UGHRC 18 (1 December 2016)

Full Case Text

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## **THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION TRIBUNAL**

# **HOLDEN AT SOROTI COMPLAINT NO. UHRC SRT/120/2008**

### **1. MUSANA JOSEPHINE::::::::::::::::::::::::::::::::::::COMPLAINANTS 2. ALUPO FLORENCE AND**

# **ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

## *BEFRORE HON (RTD) JUSTICE GIDEON TINYINONDI*

#### **DECISION**

The Complainants brought this complaint against the Respondent seeking compensation for alleged violation of WabwireAbudalahman Jose's (deceased/ victim) right to life and Alupo Florence's right to freedom from torture, or cruel, inhuman or degrading treatment or punishment. The 1st Complainant, Musana Josephine alleged that on 24lh November, 2008 at around 2:00pm, she was informed by the 2nd Complainant, Alupo Florence, that her son, Wabwire Abudalahman Jose, had been arrested and detained at Soroti CPS. That the police surrounded her home and pushed Atim Stella and Alupo Florence inside the house and started throwing everything out of the house while beating the duo. That they asked them for 'the gun', searched the

home but never found it. She further states that they took Florence and Atim in a Police vehicle, but by 6.00 p.m. Atim returned home. That her son called her and told her that the victim was dead and that his body was in Soroti mortuary. She further alleged that she went to the mortuary and she found the deceased lying down in underpants and that his body was full of soil in the eyes and nose. That the deceased was buried on 28th November, 2008 but on 22nd December 2008, the Inspector General of Police sent a Doctor from Kampala who exhumed the body and carried out another postmortem since they were not satisfied with the first one. The 2nd Complainantalleged that on the date she cannot recall, but in November, 2008, her husband (deceased) was brought to their home on a police pick up. That the Police officers asked them for 'the gun' and started beating them with sticks. That they entered their house which they searched but found no gun. That they took them to Soroti CPS and beat them the more. That she was put on a police patrol vehicle and driven to the village to search for 'the gun' and taken back to CPS. That upon her return, she did not find her husband (the deceased). That the following day, she was taken to Kireka in Kampala and detained for one week and then released without making any statement.

The Respondent through a representative, Mr. Eric Lumbe denied the allegations by the Complainants.

#### **Issues**

The issuesto be resolved by the Tribunal are:

- (i) Whether Wabwire Abudalahman Jose's right to life was violated by state agents/servants - (ii) Whether there was a violation of the 2nd Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment by state agents/servants - (iii) Whether the Respondent is liable for the violation of the victims'rights - (iv) Whether the Complainants are entitled to any remedies.

Before I resolve the above issues, I wish to state that this matter was mostly heard by a former member of the Commission, Comm. Agaba Maguru (Mr). I have therefore based this decision on his record of proceedings.

Furthermore, I note from the record that the Respondent did not lead any defense and never filed any submissions in defense of the matter. The Respondent attempted to settle this matter amicably but this never yielded any fruits despite the several adjournments allowed for this purpose. I also note that Alupo Florence was joined as the 2nd Complainant in the course of hearing this case.

The Complainants retained the burden to prove their case against the Respondent on 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.

## **Issue 1; Whether Wabwire Abudalahman Jose's right to life was violated by 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 6of 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 respectfor his life and the integrity of his person, and no one may be arbitrarily deprived ofthis right.*

Article 22(1) of the Constitution of Ugandaprovides 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 lstComplainant, **Musana Josephine, Cl,** testified that on 24th November, 2008 at around 2.00 p.m. her home was surrounded by Policemen who were in the company of Florence Alupo who told her that Wabwire Abudalahman had been arrested and taken to Soroti CPS. That the police pushed Atim Stella and Alupo Florence inside the house and started throwing everything out of the house while beating the two. That some Policewomen were pulling off the grass that thatched the house, while others were surrounding the home. That they asked them for 'the gun', searched their home but never found it. She further states that they put the duo on top of a Police vehicle, and drove them away, but by 6.00 p.m, Atim returned home. That the following day, they went to the police station but they were not allowed to see the suspects. She further stated that she rang one of her sons in Kampala who called the DPC Soroti. That the DPC informed him that the deceased was not at the Police Station but at the Military Barracks. That he further called at the Military Barracks but they told him that the suspect was in Mbale. That when he called Mbale, he was told that the suspect was not there either. That she later got information that the victim was dead and that his body was in Soroti mortuary. She further

testified that she went to the mortuary and I found the deceased lying down in underpants and that the body was full of soil in the eyes and nose. That Police brought a Medical Assistant to do a postmortem which was done in only 5 minutes. That the next day, she was given a copy of the postmortem report but family members disputed its findings. That the deceased was buried on 28th November, 2008. However, on 22nd December, 2008, the Inspector General of Police sent a doctor from Kampala who exhumed the body and carried out another postmortem. That the deceased was again buried. She also testified that the deceased left six children who are all in school and being helped by the 1st Complainant's son, Wabwire Rashid.

Upon cross examination, Musana Josephine stated that Florence Alupo went back to her home and re-married while Atim Stella died of HIV and TB and was buried on 17th July, 2012. That at the time of Wabweire's death, he was residing at Odudui in Arapai sub-county and that she used to see him regularly. She further stated that she did not see anybody beating deceased.

**Florence Alupo (C2)** testified that on the date she cannot recall, but in November, 2008, her husband (deceased) was brought to their home on a police pick up. That the Police officers asked them for The gun' and started beating them with sticks. That they entered their house which they searched but found no gun. That they took them to Soroti CPS and further beat them. That she was put on a police patrol vehicle and driven to the village to search for The gun' but was not found. That she was taken back to CPS but she did not find her husband (the deceased) there. That the following day, she was taken to Kireka in Kampala and detained for one week with her baby. That she was released without making any statement and went back to her home where upon she was informed that her husband, Wabwire Joseph, had died and was already buried. She prayed to be compensated for the torture she went through and also for the loss of her husband.

Upon cross examination, she stated that Wabwiire had 2 wives including herself and Atim Stella. That at the time of their arrest, Atim Stella was not there but Police also searched her home. She further stated that Wabwiire Abudulahman was arrested from Onyorai village with her. That the deceased used to be with her most of the time and that the night before his arrest, he was at their home. That she did not know the business her husband was doing or whether he had an illegal gun. That the Police Patrol Car came with her husband when she was at home. She further stated that her husband was arrested at Odudwi Training Centre and brought home. She also stated that the Policemen were beating her while asking about a gun. That when she was taken back to Soroti CPS, she never saw her husband again. That at Soroti CPS she was beaten but upon her release she did not go for any medical checkup.

During re- examination, she stated that before the arrest of her husband, he used to go to the washing bay to wash vehicles and that she never at any one time got to know that her husband had an illegal gun. She further stated that she was beaten with her husband but she did not go for any treatment because her mother-in-law had a clinic at home.

**Auma Vicky, CW1,** testified that on 24th November, 2008, while she was at home with her mother, Musana Josephine, about 20 Police Officers came and rushed to the grass thatched house. That they started pulling off the grass of the house saying they wanted a gun. That the wife of her brother, Florence Alupo, was pushed inside the grass thatched house. That they asked her for a gun and started beating her with a baton. That the Policemen asked Alupo to identify her co-wife Atim Stella which she did. That they started beating both of them while asking them for a gun. That after about 30 minutes of beating, the Policemen called her mother Cl and they further demanded for a gun. That they searched all the houses around but failed to find The gun'. That after failing to recover The gun', they jumped into their 2 vehicles and took along with them Florence Alupo and Stella Atim. That at around 6.00 p.m. Stella

Atim came back and informed them that she had been interrogated about a gun but she kept denying. That Florence kept in detention together with her husband (deceased). That the next day, they prepared tea and took it to Soroti CPS but could not see the suspects. That the Police Officers ignored them and that at around 1.00 p.m, she called her brother (Rashid) in Kampala who also failed to locate the deceased victim. That the next day their father went to the Police Station but could not trace their brother. That at around midday, her mother, the 1st Complainant received a called from Rashid telling her that the suspect was in Soroti Hospital mortuary. That the body was brought home and buried, but later her brother Rashid arranged and the deceased was exhumed and another post mortem was done.

Upon cross examination, she stated that by the time the Police Officers came home, she did not know where her deceased brother was. That before his arrest, the deceased did not have a specific job and never worked with any Security Organization. That when she went to Police, she was not able to see him. She further stated that she believed her brother was killed because she saw his body full of injuries. That the second postmortem was done on 22nd on the request of her brother Rashid, and was witnessed by the Police and the RDC. That the first postmortem was carried out by a Medical Assistant. That they were satisfied with the second postmortem and not the first one. That her brother was arrested on charges of being in illegal possession of a gun and murder of a Police Officer. That her brother was not terrorizing the village using a gun.

During re- examination, she stated that the deceased did not have a fixed occupation. That he was a mobile businessman and never had a gun.

**Dr. Rubanza Barnabas** CW2testified that he is aholder of MBchB (MUST) 2000 and M. Sc (Applied Human Nutrition) Makerere University, 2008. That he wasa Medical Officer/Police Surgeon based in Eastern Region and stationed at Mbale Police Clinic attached to Mbale Hospital for 9 years. He identified the document

before Tribunal as Police Form 48, a Postmortem Report dated 22nd December, 2008 in respect of Wabwiire Abudalahman Jose. He testified that he received a request from Assistant Commissioner of Police, Kato, to examine the above mentioned body which was already buried. That together with the said Kato and one Egwoku, SSP, they had the body exhumed at Camp Swahili in Soroti Municipality. That the body was identified to him by the brother of the deceased, one Wabwiire Rashid of Soroti. That he examined the body under a mango tree and noted that the body was decomposing and grossly swollen with offensive smell. That some blood was oozing from the nostrils and mouth. That the skin was still intact but could easily peel off. He further noted some multiple injuries on the back. That he opened the chest and abdomen and found them normal. That he however found a lot of blood and a tear on the right lobe of the liver measuring 4cm long. That there was also a rupture of the spleen at its notch and also some fractures on the bones of the lower back (two bones). That according to his findings, the cause of death was due to uncontrollable bleeding from the ruptured spleen and from the injury on the liver. That this was as a result of repeated blunt inflictions on the abdomen. That the injuries on the back were also the result of blunt trauma. That he examined the body three weeks after he had died. That he authored and signed the postmortem report on 22nd December, 2008. The Postmortem Report dated 22/12/2008 in respect of Wabwiire Abudalahman was admitted as *Exhibit Cl*

Upon cross examination,he stated that he personally examined the body of the deceased and that the cause of death was excessive or uncontrollable bleeding from a ruptured spleen. That this was due to injury to the body by a blunt or other object. That he examined the body about 3 weeks after they had buried it. That the back bones had fractured and that he noted blood which had collected inside and ruptured of the spleen. That all the findings suggested that the deceased had been beaten. That three weeks can be long and some signs may disappear, but some signs like a broken bone will suggest the cause of death. He further stated that the internal organs were found intact.

During re-examination, he stated that he had practiced in the specialty of postmortems for 13 years. That when they exhumed the body, it was in advanced decomposition stage and that on opening, the internal organs were still intact.

I noted that Samuel Samali Moite, a clinical officer who authored the first postmortem report testified before the Tribunal that he did not have the necessary qualifications and expertise to carry out a postmortem on the deceased. That at that time Soroti Hospital did not have a medical doctor and he was requested to declare the victim dead which he did. He further stated that Tribunal should not rely on the postmortem report he authored. I further noted that both Counsel agreed with the witness. The Tribunal ruled that the postmortem report markedExhi&it *C2* be disregarded and expunged from the proceedings. In this respect, I will not rely on the testimony of Samuel Samali Moite or the postmortem report he authored.

As earlier noted, the Respondent did not lead any evidence in defence and did not file any submissions in this matter. Therefore the evidence of the Complainants and their witnesses remained unchallenged because no one adduced any evidence in rebuttal.

The 1st Complainant and CW1 testified that they never saw the deceased being arrested and beaten, but they were informed by Alupo Florence. This makes part of their evidence hearsay. Section 59 of the 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 evidenceof 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 evidenceof a witness who says he or she heard it as it happened.

However, Cl and CW1 were suspicious of the cause of death of the deceased given the circumstances and condition in which his body was. They believed that the Police Officers tortured the deceased to death. This Tribunal finds that

this was circumstantial evidence which was corroborated by the evidence of Alupo Florence who was also a victim of torture. Alupo Florence testified that her husband (deceased) was arrested by the police and brought to their home, where she was also picked and beaten. That they were taken to Soroti CPS and further beaten. That she was taken to the village to search for The gun' which they never found, but upon returning to Soroti CPS, she did not see the deceased. I find that there is sufficient evidence to prove that the deceased was in police custody and that he was indeed subjected to torture. It is therefore incumbent on the police to explain how someone who was arrested when alive eventually died in their hands.

In the matter of **Edison Oluka and Attorney General, UHRC [2003-2007] 51,** the Tribunal held that *"Where an individual is taken into state custody in good health butfound to be injured or harmed in any way, it is incumbent on the state to provide a plausible explanation of how those injuries were caused. Once an individual is in custody of the state, he is totally powerless and his fate is squarely in the hands ofthe state".*

From the evidence presented before this Tribunal, I find that the police did not provide a plausible explanation on how the deceased died and no one made an inquest in this matter. The circumstantial evidence by Cl and CW1 is corroborated by that of Alupo Florence C2 who was an eye witness to the arrest and beating of the deceased. The findings by CW2, Dr. Rubanza Banarbas further corroborated the evidence on record to the effect that the cause of death was due to uncontrollable bleeding from the ruptured spleen and from the injury on the liver; that this was as a result of repeated blunt inflictions on the abdomen and that the injuries on the back were also the result of blunt trauma. Therefore, the deceased's right to life was violated by the police officers attached to Soroti CPS who subjected him to torture while asking him for the missing gun.

I evoke the provisions of Rule 23(1) of the UHRC (Procedure) Rules 1998 and find on balance of probabilities, that the Respondent's servants /agents violated Wabwire Adudalahman's right to life, contrary to Article 22 of the Constitution of Uganda. Thus the claim by the Complainants is upheld.

**(ii) Whether the 2nd Complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment was violated by the Respondent's agents/servants**

Torture is defined under Article 1 of The Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 (UN CAT) as;

"An 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 him for an act he or a third person has committed or suspected of having committed or intimidating or coercing him or a third person 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 any other person acting in an official capacity"

**Article 24** of the Constitution of the Republic of Uganda prohibits the violation of a person's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. It was emphasized in **ATTORNEY GENERAL VS SALVATORI ABUKI Constitutional Appeal No. 1/1998** that the freedoms enshrined under Article 44 of the Constitution are non derogable and include freedom from torture or cruel, inhuman or degrading treatment or punishment.

Torture is further out lawed by several international human rights instruments to which Uganda is signatory. (See Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 4 and 5 of the African Charter on Human and Peoples Rights (ACHPR).

The actions committed against the 2nd Complainant would constitute "torture" if the same were proved.

The 2nd Complainant Alupo Florence testified that the police officers who arrested her subjected her to torture when they beat her from her home and at Soroti CPS while asking her for a gun. The evidence of C2 is corroborated by that of Cl and CW1 who testified that they saw police officers beating Alupo Florence while asking her for The gun'.

The Tribunal noted that C2 never produced any medical evidence to prove the extent of torture or the injuries suffered. However, it is not a legal requirement that cases of torture have to be proved by medical evidence. I will refer to the case of **Fred Kainamura & Ors Vs Attorney General & Ors 1994 KALR 92,** in which Justice Okello J held that, *"it is true there is no medical evidence to support the evidence of assault submitted by Turyasingura. But it was not a requirement of the law that every allegation of assault must be proved by medical evidence. I think cogent evidence can do medical evidence help to prove the gravity ofassault."*

I therefore find that medical documentary evidence is not a legal requirement to prove torture and as such, I will rely on the oral evidence on record. The evidence of C2 was corroborated by that of Cl and CW1 and I am satisfied that the police officers attached to Soroti CPS subjected C2 to severe pain in order to compel her to confess the whereabouts of The gun'.

I thus find, on the balance of probabilities, that the Respondent's agents violated CW's right to freedom from torture or cruel, inhuman or degrading treatment or punishment and this claim of torture in the this matter is upheld.

## **(iii) Whether the Respondent (Attorney General) is liable for the violations against the Victims'rights**

Asresolved in the above issues, there was a violation of Wabwire Abudalahman's right to life and C2's right freedom from torture or cruel, inhuman or degrading treatment or punishment contrary to Articles 22, 24 and 44 of the 1995 Constitution of Uganda.

Article 119(4) (c) of the Constitutionprovides thatthe 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),** New bold 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 actsfor which the masteris to be held liable.*

Therefore, under the principle ofvicarious 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 police officers 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 police officers were identified by Alupo Florence C 2 who was also a victim of torture for the same reason. 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 violations of the victims' rights by the state agents (Police officers) attached to Soroti CPS.

## **Issue IV; Whether the Complainants are entitled to any remedies**

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-

(a) (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 his family is entitled to a remedy in form of compensation.

In this respect, I will assess the quantum of damages taking into account the matters previously decided by the Uganda Human Rights Commission tribunal among other factors.

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 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 the instant complaint, the deceasedleft six children who were still minors at the time of his death in 2008. They are now under the care of the Complainant, and their uncle Wabwire Rashid. The deceased had two wives and one of them Atim Stella was reported to have died in 2012 and the second one Alupo Florence, C2 has since left the marital home. I must therefore take into account the fact that this double loss on the side of the children must be causing them serious problems and challenges. I will also consider the fact that the deceased met his death after a painful experience of torture at the hands of police officers who never gave any explanation for his death.

I can also not overlook the fact that Counsel for the Respondent attempted to settle this matter outside tribunal but no response was got from the office of the Solicitor General. The Complainant has proposed UGX 35,000,000. (Uganda Shillings thirty five million only) but Counsel for the Attorney General had offered UGX 30,000,000/= (Uganda Shillings thirty million only) which was also acceptable by the Complainants.

The Letters of Administration in respect of the estate of the deceased were granted to Wabire Rashid and Alwero Stella. The Tribunal noted that the Complainants Cl and C2 are not the administrators of the estate of the deceased. Taking into account the fluctuation of the Uganda Shillings over the period, I therefore award Ug. Shs. 35,000,000= (Shillings thirty five million only) to the Administrators of the estate of Wabwire Abudalahman for the violation of his right to life. I so award.

In regard to the torture of C2 I will rely on the matter of **Isabirye Kiwule V Attorney General, Complaint UHRC/J/35/2003,** Commissioner J. M Aliro-Omara laid down points to consider when granting compensation for breach of a Complainant's freedom from torture or cruel, inhuman and degrading treatment or punishment:-

- a) The nature of torture and injuries sustained by the Complainant and the impact on his life if any - b) The fact that this right is absolute as stipulated in Article 44 of the Constitution. - c) The innocence of the Complainant - d) Where possible, previous awards in cases or complaints of a similar nature.

The 2nd Complainant stated that she was beaten, but she never described the injuries suffered. There was no medical documentary evidence to prove the nature of injuries and whether there was any permanent disability. Basing on the fact that the right to freedom from torture is absolute and that was never charged in courts of law, implying that the arrest was false. C2 made allegations as to detention for one week but these remained uncorroborated and as such, I will not make any award in regard to detention beyond 48 hours. I therefore award Ug. Shs. 2,000,000= (Shillings two million only) to the 2nd Complainant, Alupo Florence, for the violation of her right to freedom from torture or cruel, inhuman or degrading treatment or punishment. I so award.

## **ORDER**

- 1. The complaint is allowed. - 2. The Attorney General (the Respondent) is ordered to pay to administrators of the estate of late Wabwire Abudalahman a total sum of U. Shs **35,000,000/** (Uganda Shillings thirty-five million) as general damages for the violation of his right to life.

- 3. The Attorney General (the Respondent) is ordered to pay Ug. Shs. 2,000,000=(Shillings two million only) to the 2nd Complainant Alupo Florence for the violation of her right to freedom from torture or cruel, inhuman or degrading treatment or punishment. - 4. The said amounts of U. Shs 37,000,000/ (Uganda Shillings thirty-seven million) will separately carry interest at court rate from the date of this decision until payment in full. - 5. 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.

**DATED ON THIS DAY OF...... J??X..201.6**

**HON (RTD.) JUSTICE GIDEON/TINYINONDI**

**PRESIDING COMMISSIONER**