[2017] UGHRC 28


# THEREPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION(UHRC) TRIBUNAL HOLDEN AT MOROTO COMPLAINT No. UHRC/MRT/40/2008

AWAS LUCIA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: COMPLAINANT

-AND-

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

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

#### DECISION

The Complainant Awas Lucia of Namalusubcounty, Nakapiripit district alleges that on 29thJanuary 2008 her husband Thiyokon Mariko, who was the Local Council ¹ Chairperson of Lomorunyangae village, Namalusubcounty was shot dead by UPDF soldiers who were on a cordon and search operation in Lomuruyangaevillage.

The Complainant prayed that the Commission orders the Government of Uganda, as the employer of the UPDF soldiers who killed her husband to compensate her for the violation of her husband's life, who was the sole physical and financial supporter of the family.

Before I proceed to decide this matter, It should be noted that this matter was heard by Commissioner Violet Akurut Adome. I have therefore based this decision on her record of proceedings.

# Issues for determination by the Tribunal:

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

#### ISSUE 1:

# Whether Thiyokon Mariko's right to life was violated by the Respondent's agents?

The right to life is a fundamental right upon which the enjoyment of other rights stem from. None of the other human rights can be enjoyed or claimed by an individual unless he or she is alive and well. Accordingly human rights law protects the right to life and defines strict circumstances under which life may be denied.

# Under Article 22(1) of the 1995 constitution of the Republic of Uganda,

*"no person shall be deprived oflife intentionally except in execution ofa 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 have been confirmed by the highest appellate court"*

In addition, several International human rights instruments to which Uganda is a signatory protect the right to life.

Under Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR),

*"Every human being has the inherent right to life. The right to life shall be protected by law. No one shall be arbitrarily deprived ofhis life"*

# Under Article 4 of the African Charter on Human and Peoples' Rights (ACHPR),

*"Human beings are inviolable. Every human being shall be entitled to respectfor his life and the integrity ofhis person. No one may be arbitrarily deprived ofthis right".*

Having discussed the law on the right to life, I now move to relate the law to the evidence

The Complainant,Awas Lucia, testified that in January a year she could not remember in the morning soldiers came from Lolacat side surrounded their Lomurunyangae village in Namalusubcounty. That since her husband Thiyokon Mariko was the LC1 chairman of the village, he went out of their house to tell the village mates not to get scared. That the soldiers had been led by four village mates;Kodro, Lomangin, Albino, Lolit and Loumo who had been arrested for being in possession of illegal firearms and hence the soldiers had made a cordon search operation for the guns. That at that time no one came out of their houses until the following day after being called out by the soldiers . It was at this time that they all realized Thiyokon Mariko had been shot and killed. The Complainant further stated that the authorities and soldiers promised to bring the culprit to justice but nothing was done.

During cross examination, the Complainant stated that she was inside her house when the soldiers condoned the village. She added that she saw the soldiers shoot when they were asked to come out and that at that time she had not realized her husband had been killed. She noticed it later when they were dispersed. She affirmed that the husband was in her house that day and that when he went out he never returned. She confirmed the fact that there were soldiers in the village when her husband was shot.

The Complainant's first witness, Joshua Ojao testified that at the time of the incident he was an LCIII chairman, Namalusubcounty. That on 29th January 2008 Awas Lucia sent a young boy to him who informed him that the LCI chairperson of Lomurunyangae village had been killed by the UPDF when they had come for a cordon and search operation. That he immediately rang the battalion commander of 33 battalion,the Brigadier commander Lt. Col. Moses Kikirisa of 407 Brigade, the DPC and DISO of Nakapiripirit district and informed them that the UPDF had killed the chairperson of Lomurunyangae. That the later went to the scene and inquired about his death and were told that Thiyokon Mariko was moving around the village telling people not to run since the soldiers had surrounded the village and that there was shootings in which the LCI was killed.

That when the villagers were called and interrogated they denied any shooting from their side but stated that the soldiers shot the chairman who had been telling people not to run away. That when they made a search they did not see any bullet shells from inside the village but only outside which the soldiers had shot. The brigadier commander promised to investigate the incident but that nothing was done.

Upon cross examination he stated that he was informed about the death of the LCI chairman and that he participated in a meeting that was called after the incident in which the soldiers denied causing the death of the LCI chairman. He added that the soldiers searched other places and got guns from the next village. He insisted on the fact that the soldiers shot the deceased

Adoch Caroline the Complainant's second witness is a health worker and a registered Nurse at Nabulenga health centrell, Nakapiripirit district. She testified that on 29thJanuary 2008 the police officer in charge of Namalu police requested her to fill in a post mortem report. She stated that she examined the body of Mariko and her findings were a bullet wound on the right side of the neck. She added that she concluded it was a bullet wound because the entry was small with the exit of the bullet on the left side. On further examination there was another wound on the right thigh with the same wounds like those on the neck. She concluded that the cause of death was due to the gunshots.

The post mortem report was admitted in evidence as the complainant's first exhibit for proof of cause of death.

The Complainant's third witness DengelNaroo testified that she was also married to the deceased and on a day she cannot remember her husband went to wake up children that as soon as he went out he was shot by the soldiers and that the soldiers ordered everyone out and were all assembled in different groups. That the men were thoroughly beaten and after driven with their animals to the barracks. When the soldier left she went back to Manyatta only to find that her husband had been buried.

During cross examination DengelNaroo stated that when the soldiers condoned the village she was in her house with her husband ThiyokonMariko, that the time he went out she remained inside the house by the door side. She confirmed that there was no shooting inside the Manyatta and that her husband was shot before he could wake up people from other houses. She affirmed that her co wife Awas Lucia never saw their husband being killed but only heard the gunshots. She further stated that she first heard one gunshot then several after her husband was shot. That when the soldiers did a search they never found guns. She lastly stated that she realized her husband had been killed when the soldiers were asking for the LC 1 chairman, and that other people were saying that the soldiers had killed him.

The Complainant's last witness Aleper Joseph stated that in 2008 he was informed by his sister AleperNadulai that the soldiers from Lolacat detach had killed Mariko. He went to Lominyangi and found Thiyokon Mariko had been killed that when the police and DISO arrived they went to where the body was laid and saw he had been shot on one side of the head. That they called for a meeting with the soldiers and moved around the Manyatta and discovered seven guns which residents of the Lorengai village had buried down. In the meeting the soldiers denied killing the LC1.

During cross examination he stated that he participated in the meeting, and what was discussed about the death of the LC1 was that the deceased was preventing the residents from coming out of Manyattas and that he had come out of his house to stop them. That he used the corridor where the soldiers were and next they heard gunshots.

That the soldiers got the guns that were discovered from Loregai a neighbouring village about 300 metres. He further stated that he never witnesses who killed.

Other than cross examining the witnesses, the Respondent did not call any witnesses in defece of the matter. The Respondent's Counsel however filed submissions in defence in which he stated that the Complainant did not provide any proof or evidence to suggest that she saw the UPDF soldiers kill her husband. The Respondent's Counsel further argued that the death of the deceased occurred late in the night making it difficult to identify who killed the deceased. That the soldiers at the time recovered very many guns from the same village while disarming the villagers who had guns in that vicinity. That nobody can with clarity tell who killed the Complainant's husband since soldiers disarmed Karamojongs in that area.

The Respondent further submitted that in Oryem Richard v Uganda SCCA No.22the learned justice of the Supreme Court held that a court of justice is under a duty to ensure that people who commit crimes are punished in accordance with the process of the law. This includes proper process of investigations and proof by satisfactory evidence that the suspect is guilty. In the instant case the above standard of proof has not been met as no single witness appeared to have witnessed the shooting of the complainant's husband by UPDF soldiers.

Commission Counsel in her guidance to the Tribunal submitted that there are instances when court can rely on purely circumstantial evidence to determine a matter before it. She further argued that according to the testimonies of Aleper Joseph and DengelNaroo the soldiers did not recover any guns from the Complainant's village but from Loregai village next to the complainant's and the deceased's village. She therefore argued that although many people possessed guns in Karamoja people in this particular village where the deceased and the complainant hail from did not have guns and as such could not have been involved in the shootout with the soldier.

I concur with the submissions of Counsel for the Commission on the fact that the guns that were recovered according to the evidence on record were recovered from Loregai village. The tribunal decides matters on a balance of probabilities this means that the Respondent in rebutting the complainant's evidence should have brought evidence showing that the deceased was shot dead by some other person other than the soldiers.

On the identification of the culprits it was the Respondent's submission that that the death of the deceased occurred late in the night making it difficult to identify who killed the deceased. In response the Commission Counsel stated that in DengelNaru's testimony that the soldiers after the shooting ordered everyone outside the Manyatta and proceeded to search the village. That she further testified in response to the questions put to her by the tribunal that it was after the soldiers brought everybody outside the Manyatta when she realized that the deceased was dead and proceeded to search the village. That the complainant also testified that it was in the morning when the soldiers entered the Manyatta calling people out and separating them in groups which means that the time the whole operation took place was long enough for the villagers to identify that the shooting which claimed the life of the LC1 was from the soldiers.

The tribunal finds that the UPDF soldiers condoned and searched the area for illegal guns which is clearly in the course of their duties. The soldiers did not deny the fact that they were present on duty in the search operation. I agree with counsel for the respondent that no one clearly saw the complainant's husband being shot. However the overwhelming circumstantial evidence on record points to the fact that the soldiers during the operation were armed and on duty in search for illegal guns. All the complainant's witnesses state that no guns were recovered in that particular village where the deceased was killed but in Loregai village which is a neighbouring village. This therefore lives the UPDF soldiers to be the only group that was armed in this particular village during the operation. The respondent had a duty to rebut the said evidence by producing evidence showing that the civilians in Lomuruyangae village had guns but this was disregarded. The deceased at the time he was shot he was not armed and so it was the duty of the UPDF soldiers to guarantee his safety. The deceased was shot while trying to quell the situation, informing his village mates of the presence of the UPDF in the area. More so it was the duty of the UPDF to ensure that the civilians were aware of their presence and not the later.

The deceased according to the postmortem died of gunshot wounds which leaves the tribunal with the option of finding the respondent's agents to having violated Thiyokon Mariko's right to life since no evidence was brought to the contrary

In the case of *Joseph Magezi versus Uganda, SCCA No.8/19993;* Supreme Court held that the real question in the case whether the appellant was one of the assailants of the deceased person may be determined by circumstantial evidence that is an explanation upon any other reasonable hypothesis of the guilt of the appellant.

In the absence of more convincing evidence to the contrary, I am persuaded by the evidence on record that the person who shot at the deceased and killed him was in fact a UPDF soldier.

Article 119(4)(c) of the Constitution, provides that the function of the Attorney General shall include representing the Government in courts or any other legal proceedings to which the Government is a party.

The UPDF soldiers in the instant case fell short and breached their duty under Article 209(c) of fostering harmony between the defence and civilians. Thus, Government, represented by the Attorney General who is the Respondent in this matter, is liable for their actions since the UPDF soldiers were on duty on a search operation of illegal guns.

### Issue two:

Whether the complainant is entitled to any remedies?

The Uganda Human Rights Commission has powerunder Article 53(2) of the 1995 Constitution of the Republic of Uganda to grant remedies for any violation of human rights and in this complaint the proper remedy is an award of compensation. In making an assessment for an award of compensation for the violation of the right to life it is very relevant first to consider the fact that the right to life is a *sine qua non* for the enjoyment of other human rights. Although it is not an absolute right it is so fundamental that its infringement is only sanctioned under legally permissible circumstances. In this complaint, Thiyokon Mariko died as a result of an infringement of his right.

In *JUMAN ABUKOJI -and- ATTORNEY GENERAL, COMPLAINT NO. UHRC/G/326/1999this* Tribunal held that compensation payable when the right to life is violated is primarily for the very act of violating the right to life. Any proof of loss of dependency would be additional consideration to be taken into account when assessing damages. The compensation payable is for the benefit of the estate of the deceased.

In considering how much to award, I will also take into account the evidence which shows that no effective investigation was conducted into the death of Thiyokon Mariko by the Authorities.

In determining the final award the Tribunal will take into consideration previous awards made for violations of the right to life. This should provide a guide as to how much to award. In *OMONG JUK -and- ATTORNEY GENERAL, COMPLAINT NO. UHRC/GA67/1998,* the Tribunal awarded U. Shs20,000,000= as general damages to cover the violation of right to life and freedom from torture, cruel, inhuman and degrading treatment or punishment.

In the instant case the deceased was a father and so left behind dependants, he was killed by UPDF soldiers whose role was to keep peace and protect civilians. The UPDF soldiers while conducting a cordon and search operation were acting within the course of their duties which makes the Attorney General as stated above vicariously liable for the infrigment of Thiykon Mariko's right to life.

Bearing the above observations and the earlier awards in mind, and the overall circumstances of the events leading to the complaint, I make an award of U. Shs 25,000,000= (twenty five million) for the violation ofThiyokon Mariko's right to life.

#### ORDER:

- 1. The complaint is allowed. - 2. The Respondent is ordered to pay the Administrator of the estate of the lateThiyokonMarikoa sum of Ug. Shs 25,000,000= (Twenty five Million Shillings) as general damages 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.

I so order.

Dated at Moroto this

MEDDIE B. MULUMBA (PRESIDINGCOMMISSIONER)