Uganda v Chelimo & 2 Others (HCT-00-ICD-CR-SC 10 of 2023) [2024] UGHCICD 5 (13 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (INTERNATIONAL CRIMES DIVISION) HCT-00-ICD-SC-0010-2023**

5 **UGANDA ...................................................................................... PROSECUTOR**

#### **VERSUS**

| A1. CHELIMO JULIUS MOSES | | |-------------------------------------|---------| | A2. CHELIMO FELIX……………………………………………… | ACCUSED | | A3. KWEMOI JOSHUA | |

# **BEFORE: HON. JUSTICE ALICE KOMUHANGI KHAUKHA**

## **RULING FOR CONFIRMATION OF CHARGES**

#### 15 **Introduction**

This Ruling is in respect to a pre-trial and confirmation of charges whose hearing was conducted in the above case file (**HCT-00-ICD-SC-0010-2023**).

Chelimo Julius Moses (A1) is indicted for one count of Aggravated Trafficking in

20 Children contrary to Sections 3 (1) (a) & 5 (a) of the Prevention of Trafficking in Persons Act, 2009, and one count of Aggravated defilement contrary to Section 129 (3) & 4 (c) of the Penal Code Act, Cap 120. Kwemoi Joshua (A3) is indicted for one count of Aggravated Trafficking in Children contrary to Sections 3 (1) (a) & 5 (a) of the Prevention of Trafficking in Persons Act, 2009 while Chelimo Felix (A2) is

25 indicted for one count of Promoting Trafficking in Persons contrary to Section 7 (a) of the Prevention of Trafficking in Persons Act, 2009.

#### **Representation**

The Prosecution was represented by Ms. Marion Ben-Bella, Senior State Attorney from the Office of the Director of Public Prosecutions while all the Accused persons were represented by Mr. Evans Ochieng of M/S Ochieng Associated Advocates and

5 Solicitors on private brief.

#### **Background/Facts as disclosed by the Prosecution**

The Prosecution alleges that Chelimo Julius Moses (A1) was the LCV Chairman of Bukwo District while the Victim was a student of Primary Seven (P7) at Kyepkwasta

- 10 Primary School also in Bukwo District. The Victim then aged 16 years was living with her sister (complainant). A1 tried to lure the Victim into a love affair but the Victim resisted it until 21st October 2022 when he sent Kwemoi Joshua (A3) who is the Victim's uncle to entice the Victim for him. - A3 managed to entice the Victim and even promised her that A1 would give her 15 money. A3 picked up the Victim from her sister's home and transported her to the home of Chelimo Felix (A2) where they found A1 waiting for her.

A1 was seated in the visitor's bedroom and A3 handed the Victim to him. A1 gave money to A3 for accomplishing the task of bringing the Victim. A1 then had sexual intercourse with the Victim in the night and promised that he would marry her, take 20 her to Kampala, and return her to Bukwo after her parents had cooled down.

The next day, A1 left the Victim in the bedroom and promised to return and pick her In his absence, A2's wife provided the Victim with food. As the Victim was waiting for A1 to return, A3 instead came to the home and informed her that A1 was unable 25 to return to her because he had been called at Police. A1 was being investigated for another offence similar to this one.

The Victim feared to return to her sister's home and instead went and started wandering in her friends' homes until 27th October 2022 when her sister was informed about her whereabouts. The Victim then revealed her ordeal to her sister who reported the matter to Police hence these charges against the three Accused 5 persons.

#### **Disclosure/List of exhibits presented by the Prosecution**

The Prosecution made their disclosures and presented the documentary exhibits that were identified and duly marked by the Court as required under the Judicature (High

- 10 Court) (International Crimes Division) Rules, 2016 and the High Court (International Crimes Division) Practice Directions, 2011. The exhibits comprise of: Witness Statements, Victim's Immunization Card, Victim's Birth Certificate, Statements of Police Officers who investigated the case, Plain and Charge and Caution Statements of the Accused persons, Police Forms, X-ray Report, Search 15 Certificates, Exhibit slips, Forensic Laboratory Test Results for the Accused - persons, among others.

#### **Jurisdiction**

Clause 6 (1) of the High Court (International Crimes Division) Practice Directions,

20 2011 provides for the jurisdiction of the International Crimes Division of the High Court. It stipulates that:

*"Without prejudice to Article 139 of the Constitution, the Division shall try any offence relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime as may be provided for under the Penal Code Act, Cap. 120, the*

25 *Geneva Conventions Act, cap. 363, the International Criminal Court Act, No. II of 2010 or under any other penal enactment." [Emphasis Mine]*

One of the charges against the Accused persons was brought under Sections 3(1) (a) and 5(a) of the Prevention of Trafficking in Persons Act, 2009. The said Act according to its long title was enacted to prohibit the trafficking of persons, create offences, prosecution and punishment of offenders, prevent the vice of trafficking in

5 persons, protect victims of trafficking in persons, and other related matters.

Therefore, this Court has jurisdiction to hear this matter.

From the foregoing, it is clear that the charges brought against the Accused under the Prevention of Trafficking in Persons Act, 2009 are offences that are triable by the International Crimes Division of the High Court as stipulated under clause 6 (1) 10 of the High Court (International Crimes Division) Practice Directions, 2011.

#### **Position of the Law**

In all trials before the International Crimes Division of the High Court, it is a legal 15 requirement to hold a pre-trial hearing. The practice of holding a pre-trial hearing and confirmation of charges in criminal trials is a well-established procedure followed by the International Criminal Court. The International Crimes Division of the High Court of Uganda is a specialized Court as established by the High Court (International Crimes Division) Practice Directions, Legal Notice No. 10 of 2011. 20 This Division of the High Court aims at operationalizing the international standards applicable in the International Criminal Court of the Rome Statute to which Uganda is a party and therefore, guiding the practice of this Court. In keeping with the International Law principle of *Pacta Sunt Servanda*, which simply means "agreements must be kept," Uganda having signed, ratified and domesticated the 25 Rome Statute by the enactment of the International Criminal Court Act, 2010 is bound to perform its obligations under that Instrument.

Article 61 (1) of the Rome Statute of the International Criminal Court (hereinafter referred to as **the Rome Statute**) stipulates that:

*"Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the pre-trial chamber shall hold a hearing to confirm*

5 *the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her legal counsel."* **[Emphasis Mine]**

In our jurisdiction, the legal requirement for holding a pre-trial hearing was 10 introduced by the Judicature (High Court) (International Crimes Division) Rules, 2016 (hereinafter referred to as **the ICD Rules**) specifically under Rule 6 (2) which stipulates that:

*"The Division shall, after an Accused person has been committed for trial before the Division, hold a pre-trial conference..."*

The purpose of the pre-trial conference as per Rule 6 (2) (a)-(h) of the ICD Rules is to consider the facts of the case; the markings for identification of the evidence of the parties; any waiver of objections to admissibility of evidence; the settlement of some or all of the issues; the status of victims and witnesses and any special needs 20 of the witnesses; the Accused person and the defence witnesses, if any; the necessary orders and directions to ensure that the case is ready for trial, and that the trial proceeds in an orderly and efficient manner, and obtaining of such orders; the modifications of the pre-trial order if the accused admits the charge but interposes a lawful defence; and any other matters that will promote a fair and expeditious trial 25 of the case.

However, it is prudent to note that the pre-trial hearing does not include hearing of witnesses as per Rule 12 (10) of the ICD Rules. The Court is only expected to rely

on the summary of the case and the evidence that was disclosed by the Prosecution not later than fifteen (15) days before the date of the pre-trial as per Rule 21(1) of the ICD Rules.

#### 5 **Evidential Burden and Standard of Proof**

In all criminal matters, the Prosecution bears the evidential burden to prove all the elements of the offence charged except in certain offences which however are not the subject of this case (**See:** *Woolmington versus DPP [1935] AC 462*). It is also trite that the standard of proof in criminal cases is beyond reasonable doubt (**See:**

10 *Miller versus Minister of Pensions [1947] 2 ALL ER 327*).

However, this being a pre-trial, the evidential burden and the standard of proof will most likely differ since no witnesses are being called to testify and neither is any evidence being examined at this stage. Our law does not stipulate the evidential 15 burden and standard of proof that should be met by the Prosecution during pre-trial hearings. (**See:** *Uganda versus Miria Rwigambwa HCT-00-ICD-SC-0006-2021; Uganda versus Nsungwa Rose Karamagi HCT-00-ICD-SC-0007 of 2021*) As such

and as earlier noted, we shall adopt the evidential burden and standard of proof provided by the Rome Statute.

In light of the above, I shall consider Article 61 (5) of the Rome Statute in relation to the confirmation of charges which provides that the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or 25 summary evidence and **need not call the witnesses expected to testify at the trial**.

[Emphasis Mine]

Article 61 (7) of the Rome Statute further provides for the evidential burden and standard of proof. It stipulates that:

*"The pre-trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes*

5 *charged. Based on determination, the pre-trial Chamber shall:*

- *(a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a trial Chamber for trial on the charges confirmed;* - *(b) Decline to confirm charges in relation to which it has determined that there is insufficient evidence;* - 10 *(c) Adjourn the hearing and request the Prosecutor to consider:* - *(i) Providing further evidence or conducting further investigation with respect to a particular charge; or* - *(ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court."* **[Emphasis Mine]**

The concept of "substantial ground to believe" was defined in the case of *Mamatkulov and Askarov versus Turkey of 4th February 2005 (Applications Nos. 46827/99 and 46951/99*) by Judges Nicholas Bratza, G. Bonello and J. Hedigan in their dissenting opinion where they stated that "substantial grounds to believe" 20 means "strong grounds for believing". (**See also:** *Soering versus United Kingdom, Application No. 14038/88 (ECHR); The Prosecutor versus Thomas Lubanga Dyilo, ICC-01/04/06-803-TEN 14-05-2007 1/157*)

From the foregoing, the evidential burden and standard of proof required by the 25 Court at the pre-trial stage must be strong and/or concrete and tangible in demonstrating or drawing a clear line of reasoning underpinning the Accused to the specific allegations. (**See:** *Prosecutor versus Bosco Ntaganda ICC-01/04-02/06 at page 5*).

Thus, in determining whether the Prosecution has met the above said evidential and standard of proof threshold, the Chambers ought to recognize that the evidence the Prosecution presented must be analyzed and assessed as a whole as was held in the

5 case of *The Prosecutor versus Germain Katonga and Mathien Ngudjolo Chui ICC-01/04-01/07 at page 23*. This Honorable Court will adopt the same test in its evaluation of the evidence presented by the Prosecution in this case.

#### **Issue**

10 *Whether there is sufficient evidence to establish substantial grounds to believe that the Accused persons committed each of the crimes they are charged with.*

#### **Counts 1 and 2:**

# **Aggravated Trafficking in Persons contrary to Sections 3 (1) (a) and 5 (a) of the** 15 **Prevention of Trafficking in Persons Act, 2009.**

It is alleged by the Prosecution in count 1 that:

*"Chelimo Julius Moses on the 21st October 2022 at Cairo village, Chepkwasta Sub-County in the Bukwo District recruited or received Chelimo Ziporah, a girl child aged 16 years, by means of deception or abuse of power or position of vulnerability* 20 *for the purpose of sexual exploitation."*

The Prosecution further alleges in count 2 that:

"*Kwemoi Joshua on the 21st October 2022 at Cairo village, Chepkwasta Sub-county in the Bukwo District recruited or transferred Chelimo Ziporah, a girl child aged 16*

25 *years, by means of deception or abuse of power or position of vulnerability for the purpose of sexual exploitation."*

### **Court's Consideration**

Section 3 (1) (a) of the Prevention of Trafficking in Persons Act, 2009 provides that: *"A person who recruits, transports, transfers, harbours or receives a person, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the*

5 *abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation commits an offence and is liable to imprisonment for fifteen years."*

Section 5 (a) thereof provides that:

10 *"A person who does any act referred to under Section 3 in relation to a child commits an offence of aggravated trafficking in children and may be liable to suffer death."*

From the above provision of law, the following are the ingredients of the offence of Aggravated Trafficking in Children:

15 (a) the age of the Victim;

- (b)the act of recruitment or transportation or transfer or harboring and receipt of the Victim; - (c) by means of deception or position of vulnerability; - (d)for purposes of exploitation; and - 20 (e) the Accused's participation.

#### **The age of the Victim**

The Prosecution as per the indictment states that the Victim was sixteen (16) years old at the time of the commission of the offence. It has been judicially noticed that 25 the most reliable way of knowing a child's age is through the testimony of her parents, among other things. The Prosecution disclosed a Birth Certificate (PE ID28) which shows that the Victim was born on 20th May 2006 which puts her age at 16 years in 2022 when the offence is said to have been committed. This is corroborated by the X-ray Report (PE ID29) which reveals that the Victim was a person below 18 years of age, the Immunization Card (PE ID27), the statement of the Victim's mother (PE ID4), and the statements of the Victim (PE ID41 and PE ID42) which all show that the Victim was below the age of 18 years at the time the offence was allegedly

5 committed.

In light of the above, it is my finding that the disclosed evidence is sufficient to prove that the Victim was aged below 18 years at the time the offence was allegedly committed.

# 10 **The recruitment or transportation or harbouring or transfer of the Victim for the purpose of sexual exploitation.**

To define harboring and receiving, the Prosecution has relied on the case of *The State versus Koch (CC 20/2017) [2018] NAHCMD290* which was cited with approval in *Uganda versus Mpagi Didas HCT-00-ICD-004-2020* where Justice

*"In my view, an act of habouring or receiving a child would be complete if there was evidence to show that the Accused allowed or tolerated the presence in his dwelling of the minors to facilitate the pursuit of his unlawful intention with them or in circumstances where had their presence there been known by their parents, the parents would have objected thereto fully aware* 20 *of the risks."*

Section 2 (d) of the Trafficking in Persons Act, 2009 interprets exploitation to include at a minimum: **sexual exploitation**, forced marriage, child marriage, forced labor, harmful child labor, use of a child in armed conflict, use of a person in illegal

25 activities, debt bondage, slavery or practices similar to slavery, servitude, human sacrifice, the removal of organs or body parts for sale or for purposes of witchcraft, harmful rituals or practices. [Emphasis Mine]

<sup>15</sup> David Wangutusi held that:

To prove the two ingredients, the Prosecution disclosed the statement of the Victim (PE ID41) which reveals that in the month of October 2022, Kwemoi Joshua (A3) the Victim's uncle found the Victim at her sister's place and told her that the Chairman LCV (A1) wanted to meet her. The two walked to the home of A2 where

5 they found A1 in a visitors' room sitting on a bed waiting for them. A1 thanked A3 for the job well done and gave him UGX. 10,000 in appreciation. It is in this room where A1 had sexual intercourse with the victim several times.

This is corroborated by the statements of the people to whom the Victim reported 10 namely: her sister (PE ID1, PE ID2, and PE ID3), the Victim's mother (PE ID4), PE ID5 and PE ID6. The Victim's sister further reveals in her statements that the Victim disappeared from her home on 21st October 2022 and efforts to trace her were in vain until 27th October when she was found and she revealed her ordeal (PE ID1, PE ID2, and PE ID3). The Victim was also medically examined and it was established that 15 she had a broken hymen due to penetration (PE ID18).

In light of the above, it is my finding that there are substantial grounds to believe that A1 recruited and/or received the Victim while A3 recruited and or transferred the Victim for the purpose of sexually exploiting her

#### **By means of deception, abuse of power and position of vulnerability.**

Having perused all the statements disclosed by the Prosecution, I find that A1 is the Local Council Five (LCV) Chairman of Bukwo District and the Victim was a student in primary seven (P7). The Accused who exercised authority over the Victim abused 25 his power and enticed her with money and promise of marriage thereby exploiting her innocence and her position of vulnerability. A3, while taking the Victim to A1

convinced her that A1 would give her money, thereby exploiting her position of vulnerability.

In light of the above, I find that there is sufficient evidence from the Prosecution to 5 support the said ingredient.

However, it is also prudent to note that where the Victim of trafficking is a child, it is not necessary to prove the ingredient of "means" and their consent too shall be irrelevant as per Section 3 (3) & (4) of the Trafficking in Persons Act, 2009. The

10 said sub-sections provide that:

*"(3) The recruitment, transportation, transfer, habouring or receipt of a child for the purpose of exploitation shall constitute 'trafficking in persons' even if this does not involve any of the means set forth in subsection (1) of this section.*

*(4) The consent of the Victim of trafficking or if a child, the consent of his or her parents or* 15 *guardian to acts of exploitation shall not be relevant."*

## **Participation of A1 and A3**

The disclosed evidence of the Prosecution (PE ID41 and PE ID42) reveals that the Victim knew A1 very well and the two of them were in the same room from 3:00 pm and even spent a night together till the next morning of 22 20 nd October 2022. The Victim also revealed that prior to this incident, A1 had sent two different people on different occasions to convince her to meet him but she rejected his advances on those occasions. The Victim states that while she was in the room with A1, he had sexual intercourse with her through the night. This is also confirmed by the plain and

25 Charge and Caution statements of Chelimo Felix (A2) (PE ID14 and PE ID15) which confirms that A1 spent a night in A2's house with a girl.

The Victim also very well knew A3 as her uncle and he is the one who picked her from her sister's home and handed her over to A1 in the home of A2. A3 is also the one who picked the Victim from A2's house the following day upon instructions of A1 after A1 had sexually exploited her.

5 Consequently, I find that there is sufficient evidence to establish substantial grounds to believe that A1 and A3 committed the offence of Aggravated Trafficking in Children contrary to Sections 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009. Counts 1and 2 are therefore, accordingly confirmed.

### 10 **Count 3:**

# **Aggravated Defilement contrary to Sections 129 (3) and 4 (c) of the Penal Code Act, Cap 120.**

In Count 3, the Prosecution alleges that:

*"Chelimo Julius Moses on 21st October 2022 at Cairo village, Chepkwasta Sub-*

15 *County in Bukwo District being a person in authority over Chelimo Zipporah, performed a sexual act on the said Chelimo Zipporah, a girl child aged 16 years."*

#### **Court's Consideration**

Section 129 (3) of the Penal Code Act, 120 stipulates that:

20 *"Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death."*

Section 129 (4) provides that:

25 *"The circumstances referred to in subsection (3) are as follows- (a) where the person against whom the offences is committed is below the age of fourteen years;*

- *(b) where the offender is infected with the Human Immunodeficiency Virus (HIV);* - *(c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed;* - *(d) where the victim of the offence is a person with disability; or* - 5 *(e) where the offender is a serial offender."* **[Emphasis Mine]**

The disclosed evidence therefore must prove to the required standard the following ingredients:

- 1. That the Victim was a girl below eighteen years of age; - 10 2. That a sexual act was performed on her; - 3. That it is the Accused who performed the sexual act on the Victim; and - 4. That the Accused person was a person in authority over the child.

All the above ingredients were discussed while dealing with Count 1. The disclosed 15 evidence by the Prosecution reveals that the Victim was aged 16 years at the time of the alleged commission of the offence. The Prosecution also disclosed evidence to the effect that the Accused, being a person in authority over the Victim, as a District leader (LCV Chairman of Bukwo District) performed a sexual act on the Victim.

20 Counsel for the A1 on the other hand, contended that the disclosed evidence did not satisfy the ingredient of the age of the Victim (below 14 years) and that it also did not prove that the A1 was a person in authority over the child.

Concerning the age of the Victim, I need to observe that any one of the aggravating 25 factors as contained in Section 129 (4) of the Penal Code Act is sufficient. The Prosecution does not seek to rely on age as the aggravating factor but on the fact that

the Accused is a person in authority over the Victim. That is why in the indictment, they indicated Section 129 (4) (c) and not (a).

Having said that, I have to establish whether A1 is a person in authority over the

5 Victim. The Prosecution has adduced evidence to show that the Victim was a resident and also a student in Bukwo District and A1 was the Chairman LCV of the same district. It is my considered view and finding that A1 is a leader in the District and the Victim submits to him. As a leader, he had the responsibility of protecting the Victim and is therefore, clearly in a position of authority over her.

In light of the above, it is my finding that the disclosed evidence is sufficient to prove to the required standard that the A1, being a person in a position of authority over the Victim performed a sexual act on her. Consequently, count 3 is also confirmed against the A1.

### **Count 4:**

## **Promoting trafficking in persons contrary to Section 7 (a) of the Prevention of Trafficking in persons Act, 2009**.

The Prosecution alleges that:

"*Chelimo Felix on the 21* 20 *st October 2022 at Cairo village, Chepkwasta Sub-County in the District of Bukwo knowingly leased or sublet, used or allowed his house, building or establishment to be used for the purpose of sexual exploitation.*

### **Court's Consideration**

- 25 The following are the ingredients of the offence in count 4: - 1. Knowingly leases or subleases, uses or allows to be used any house, building or establishment; and

2. For the purpose of exploitation.

As discussed in counts 1 and 2, Prosecution disclosed evidence to the effect that the the Victim was sexually exploited in the house of A2. However, Counsel for A2 has contended that the disclosed evidence falls short of proving that A2 had knowledge

5 of the fact that the Victim was being sexually exploited from his house.

On the other hand, the Prosecution insisted that A2 was aware that A1 was sexually exploiting the Victim in his house and he permitted it to happen.

10 The Victim in her statements revealed that she was taken to the home of A2 by A3 where she found A1 waiting for her in a visitor's room. The wife of A2 was the one serving the Victim with meals. The Victim spent a night in that room with A1 who had sexual intercourse with her through the night. A2 in his plain and Charge and Caution statements (PEID 14 and PEID 15) revealed that he returned home in the 15 night at about 9:00 pm and as his wife served him food, he heard people talking in the visitor's room and when he inquired from his wife who they were, she told him that it was A1 with his girlfriend.

In light of the above, it is my considered opinion that it is inconceivable that a man 20 would go in the home of another man to lodge there with a girl child without the knowledge or authorization of the owner of the home. A2's statement also confirms that he was aware that A1 was in his house with a girl and he did nothing about it. In fact, he reveals in his statement that when he learnt about it, he just went to sleep. In light of the above therefore, it is my finding that A2 knowingly allowed A1 to use his home for sexual exploitation of the Victim. Count 4 is therefore, also confirmed against A2.

## 5 **Conclusion**

Having considered all the evidence disclosed by the Prosecution, I find that it is sufficient to establish substantial grounds to believe that all the Accused persons committed each of the offences they are charged with. The charges are accordingly confirmed against the all the Accused persons and are hereby referred for trial.

I so order.

**Dated at Kampala this 13th May 2024.**

................................................

**Alice Komuhangi Khaukha JUDGE 13/05/2024**

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