Uganda v A Y W (HCT-00-CR-SC 422 of 2020) [2023] UGHCCRD 99 (28 March 2023)

THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA,

### HOLDEN AT KAMPALA,

### **CRIMINAL DIVISION.**

### HCT-00-CR-SC-0422-2020

======================PROSECUTOR $UGANDA$ ========

#### **VERSUS**

======ACCUSED. $AYW$ ======== ==============

BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.

#### **RULING**

### Introduction

AYW who is now an adult was indicted for aggravated defilement contrary to sections 129(3)(4)(a) of the Penal code Act laws of Uganda where it was alleged that he performed a sexual act with a child aged 8 years on $21/10/2019$ .

He was first arraigned before the magistrates court on 7/11/2019 where the charge was read and explained for him in Alur language.

The charge sheet indicated he was 19 years old and therefore an adult.

He was committed for trial in the High court on 29/6/2020 seven months later.

On 28<sup>th</sup> March 2023, he appeared before High Court for plea taking and he denied the charge. He appeared young after spending 3 years and 4 months in custody and when court asked for his age, he responded he was 20 years of age and that he was 17 years at the time he was arrested.

### **Legal Representation:**

The prosecution was represented by the learned state Attorney MS Barbra Kyomugisha while the accused was represented by learned Counsel Mr. Zimbe Zephaniah.

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### **Legal Principle**

### It is trite law that a child offender should not be remanded in an adult prison which is a constitutional right.

PF24, the medical document that was used to examine the accused indicated the accused was examined and his age stated to be 19 years. Counsel Zimbe and the learned state Attorney agreed on the medical document as an agreed fact under section 66 of the Trial on Indictment Act and marked PE1 where a one Ayebale Briton a medical clinical officer examined him and stated under paragraph 3 of the form that he was 19 years old based on the dentition of 32 sets of teeth, and the physical development.

He did not indicate the physical development he relied on to arrive at 19 years.

The form has the pictogram on page 4 which he merely crossed with a pen.

Three years and more in Prison, the accused had not yet developed beards as per physical examination in court that does not need an expert. It should however be noted that court is an expert of experts and the law allows the judicial officer to inquire into the age of a suspect if he appears to be young.

Court also decided to have his teeth counted and he had 14 teeth in both the lower and upper jaw not 32 teeth as indicated on the PF24 A ON $28^{TH}$ October 2019.

They were not 28 because he had removed any but the last molar teeth were not vet developed.

The purpose of the pictogram is to show the physical development of the suspect or injuries. Where an offender is estimated to be a young adult like in the instant case, it is important to indicate which physical features of development informed the decision of estimating his age at 19 years. For example the clinical officer should have indicated that he has beards or no beards, he has grown up pubic hair or not, or that he has started shaving it. He should comment on the development of his sexual organ as well and its functionality if it is a sexual offence because an accused may claim to be impotent yet the PF3A indicates cause of injury of the vagina as erect penis or hard object like others state.

In other words, PF3A for victims of crime and PF24A for suspects of crime is part of the investigations and should not be filled with false information. This is not a case

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where a, miracle happened and 32 teeth in 2019 were reduced to 28 teeth 3 years later at the trial without medical extraction of the last molars.

This is a classic example of so many other cases were the age of the offender is enhanced to cause juvenile offenders to be remanded with adults in an adult prisons which is in total violation of their constitutional rights and a breach of the provisions of the Children Act cap 59 and its amendment.

The preamble to the Children Act is that : It is an Act to reform and consolidate the law relating to children: to provide for care, protection, and maintenance of children, to provide for local authority support for children: to establish a family and Children court; to make provision for children charged with offences and for other connected purposes.

Needless to say, the above purpose of the law is to be implemented by all the stake holders involved in the administration of justice regardless of whether the child is the victim or suspect of crime.

The Children Act defines a child to be a person below the age of eighteen years (section 2 of the Children Act) and both the Constitution and the Children Act which was passed to give full effect of the Constitutional provisions prohibit keeping a child offender in lawful custody with adults.

Article 34 (6) clearly provides that "A child offender who is kept in law ful custody or detention shall be kept separately from adult offenders".

This constitutional right is reemphasized under section 89(8) of the Children Act which provides in Mandatory terms that: "No child shall be detained with an adult person".

This applies to any child under lawful detention regardless of the seriousness of the offence.

The law goes ahead to regulate the period a child can spend on remand under section 91 of the Children Act as amended in 2016.

**Section 91 (5) (a)** provides for a remand period of three months for an offence punishable by death and 45 days for a minor offence.

The law further provides for duration of criminal cases for juvenile offenders under


Section 99 of The Children Act which provides that:

- 1) "Every case shall be handled expeditiously and without unnecessary delay. - $2) \dots \dots$ - 3) Where, owing to its seriousness, a case is heard by a court superior to the family and Children court, the maximum period of remand for a child shall be six months, after which the child shall be released on bail. - 4) Where a case to which subsection (3) applies is not completed within 12 months after the plea has been taken, the child shall be discharged and shall not be liable to any further proceeding for the same offence".

This court however has noticed the contradiction between the provisions in section 99 (3) and section 20 of the Children Amendment Act 2016 which amended section 91 particularly in respect of the remand period of children charged with serious offences triable by the High Court.

If this court is to apply the general principles of statutory interpretation using the principle of intentionalism, the intention of the amendment was to reduce the period on remand in cases of a capital nature to three months and non-capital nature to 45 days.

Section 99(3) of the Children Act is therefore in contradiction with the amendment which this court treats as an oversight of the legislatures.

The maximum statutory period on remand for juveniles charged with capital offences is three months as that was the intention of the amendment.

All the above show that a child offender must be treated within the provisions of the law and the suspect should take plea before High court within three months as the case is expected to have been concluded within a maximum of twelve months.

This case shows that the accused person's rights were violated right from the time he was arrested by enhancing his age and treating him as an adult, remand period and all through the mention of his case, committal proceedings until he appeared before the High Court for trial after three years and four months where he still appeared young.

The police that first arrested him, did not bother to examine them.

The medical officer who examined him if at all he did, lied about his age.

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The finding of fact by this court that he lied about his age and merely filled the form and stated his age to be 19 years is based on the contradiction of the accused's current dentition of 28 teeth visa vis what was indicated on PF24A that he had 32 teeth.

The State Attorney who arraigned him before the court for reading and explaining the charge never bothered about his looks visa vis the description of PF24A on her file.

We thank God for State Attorney Barbra Kyomugisha who ably executes work on behalf of the Director of Public Prosecutions as enshrined under Article 120 (4) of the Constitution before this court.

Article 120 (5) provides that: "In the exercising his or her powers under this article the Director of public prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process."

The above provision demands that the officers under the Office of the Directorate of Public prosecutions exercise prosecutorial powers within the confines of the law.

The prosecutors have almost unlimited power to make all the most consequential decisions in a criminal case from the beginning to the end.

The statutory prosecutorial power they possess should never be used to pervert the cause of justice.

Where the police has enhanced the age of a juvenile offender, the prosecutor should never allow a suspect who appears to be young to be prosecuted as an adult and remanded in an adult prison however grave the accusation is.

He or she remains a suspect. Even when he or she pleads guilty to whether of a capital nature or minor, the law pertaining to children in conflict with the law should be applied.

A prosecutor worthy the calling is at liberty when she or he comes face to face with an accused who apparently appears young, to request the judicial officer to allow the prosecution have a second opinion from the medical practitioner about the age, as an officer of court. Allowing a juvenile offender to be treated as an

adult like in the instant case just because the PF24A indicates he or she is above 18 is an abuse and perversion of the legal process. This is because, the prosecutors usually get to meet the suspects while at court for plea after sanctioning the charges. As officers of court, they should not fall in the trap of the unprofessional conduct of the police and medical officers. In the end the Office of the Directorate of Publications is the one held accountable for any injustice occasioned during the prosecution process.

The magistrate before whom he first appeared did not read all the particulars of the charge sheet including the age to him which should be the practice where the offender looks or appears to be young.

It is very important to read the age that has been stated on the charge sheet especially where the suspects appear to be young.

It is a common practice where the suspects are warned that they need not say anything because the court lacks jurisdiction.

The juvenile offenders keep quiet and find themselves in adult prisons.

All stake holders in the criminal justice system are expected to support children who are alleged to be in conflict with law.

The prisons officers are not obliged to admit juveniles in the adult prison and where the first stake holders have made errors, Prisons authorities have a duty to inform court that the offender is a juvenile.

The prison authorities can carry out a spot check while at court like counting of teeth and checking out on physical development to prove that the police which is supervised by the DPP is reckless with their work and merely have Police forms filled without examining suspects.

This court has no kind words to the police and the clinical officers who fill in these forms. It has been observed not in one case but several that they merely fill in forms especially in regard to suspected juvenile offenders.

The office of the Director of Public Prosecutions should endeavor to put its house in order as many juveniles find their way into adult prisons.

This injustice must come to an end.

The accused person ended up in an adult prison for more than three years far and above the maximum sentence for juvenile offenders for any offence including an offence of a capital nature.

His trial was conducted in an open court as opposed to the well-established procedure where children are tried in chambers or friendly environment much as he is now an adult because he matured from the adult prison.

The right to have his case concluded within 12 months was also violated and no probation and social welfare officer was involved to support the accused to assess and evaluate the circumstances under which he was suspected of this offence he was accused of which he has denied up to now. He was all by himself.

This is a case where all officers of court at the magistracy failed the accused and breached all the principles and laws pertaining to juvenile justice which are universally applied.

They acted in breach of all laws and principals pertaining to juvenile justice while hiding behind the enhanced age thereby occasioning a grave injustice to the young Suspect.

The duty of a magistrate who is the first judicial officer to interface with an accused person in a capital offence or any other offence is to arbitrate, advice, adjudicate, and administer justice in a court of law.

Failure of a magistrate to detect the lies of the prosecution about the age of a iuvenile offender at the first appearance in court amounts to a breach of his/her judicial duty of administering justice. Judicial officers must be seen to dispense justice.

Juveniles who commit crime or are suspected to have committed crime seem to be at the mercy of the prosecution.

In view of the absurd circumstances in this case, where a young suspected offender was remanded in an adult prison for more than three years, and in the interest of justice for children, the magistrates courts before whom suspects are produced should, where a suspect appears to be young adopt the following guidelines while reading and explaining the charges.

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- 1) Read the names and particulars of the suspect including the stated age, work, and place of residence. - 2) Explain to the suspect to respond to the information given about him in regard to his age, work and residence. - 3) Record his or her response in regard to his age, and other particulars such as names of the parents or guardians if they claim to be below 18 vears. - 4) Read and explain the charge as has been the case without taking plea if the charge is of a capital nature or take plea if it is within his or her jurisdiction. - 5) If he or she disputes the age and claims to be below 18 years and in court's opinion he or she appears to be below 18 years, remand the suspects in a children's remand home if necessary and order for another medical examination or release the suspect on bond where necessary. - 6) In case the report confirms that the offender is a juvenile, cause the state Attorney to write to the first examining medical officer to show cause why they should not be charged with giving false information to police.

This procedure would reverse the increasing trend where the police and the medical officers deliberately enhance the age of juvenile offenders just because they want them to be treated as adults and detained in adult prisons which is a violation of their constitutional rights.

In case court has failed to discharge its duty judiciously, then the prisons Authorities should be the last line of hope for the juvenile offender.

To the best of my knowledge all prisons have medical personnel attached to the sick bay. Any new remand prisoner who appears to be young should be examined properly by the medical or clinical officers using dentition, physical features like beards, pubic and armpit hair, and general physical bodily development of a person that can guide as to whether the offender is a juvenile or an adult.

Where it is discovered that he or she is a juvenile arrangements should be made to return the child to the court the following day or ealiest date if it is over the weekend to change the remand warrant. Where it is not practically possible to ascertain whether he is an adult or not, the suspect should be refferd for medical

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$ex$ amination of his bones by having his bones examined by a specialized scientific procedure like an X-ray.

It is very unfortunate that juvenile offenders are found in adult prisons in total violation of their constitutional rights.

All stake holders in the criminal justice system are expected to apply the laws pertaining to children as they are, without perverting justice because the procedure and language used is supposed to be childe friendly.

Any person who contravenes any of the provisions of the children Act commits an offence and is liable to pay a fine of one hundred thousand shillings or to imprisonment for a period of six months or both. Section 109 of the Children Act refers. This shows how serious it is to violate the statutory provisions of the Children like remanding them in adult prisons because the Children Act brings into effect the Constitutional provisions pertaining to Children which has sections that domesticated parts of United Nations Convention on the Rights of the Child (UNCRC)

In view of the above and having been satisfied that the accused person was juvenile at the time he was suspected to have committed the offence, and he has been in custody for more than three years in an adult prison, which period is far and above the maximum any juvenile offender can be ordered to serve, it is directed that the proceedings against him be discontinued immediately under section 17 of the judicature Act as his continued prosecution is an abuse of court process and a violation of his constitutional rights and the provisions of the children Act Cap 59. He should be released immediately unless held over some other lawful charges. The state is free to appeal if it is not satisfied with courts decision.

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Dated at Kampala this 28<sup>th</sup> day of March 2023.

Hon Lady Justice Margaret Mutonyi.

**Criminal Division.**