Uganda v Chelimo (HCT-00-ICD-CR-SC 5 of 2023) [2024] UGHCICD 6 (6 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (INTERNATIONAL CRIMES DIVISION) HCT-00-ICD-SC-0005-2023**

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

### **VERSUS**

**CHELIMO JULIUS MOSES ……………………….…..……..…ACCUSED**

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

## **RULING FOR CONFIRMATION OF CHARGES**

#### **Introduction**

This Ruling is in respect to a pre-trial and confirmation of charges whose hearing 15 was conducted in the above case file (**HCT-00-ICD-SC-0005-2023**).

The Accused person Chelimo Julius Moses 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, and two counts of Aggravated defilement contrary 20 to Section 129 (3) & 4 (c) of the Penal Code Act, Cap 120.

#### **Representation**

The Prosecution was represented by Ms. Marion Ben-Bella, Senior State Attorney from the Office of the Director of Public Prosecutions while the Accused was 25 represented by Mr. Evans Ochieng of M/S Ochieng Associated Advocates and Solicitors on private brief.

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

The Prosecution alleges that the Accused person Chelimo Julius Moses was the LCV Chairman of Bukwo District while the Victim was a student of Senior Two at Sebei College Tegeres in Bukwo. The Victim then aged 15 years was living with her 5 parents and in October 2021, the Accused lured her into a love affair enticing her with money, clothes, and phones and often caused her disappearance from her parents and abandoning school as well.

The Accused then on different occasions took the Victim to different places in 10 Bukwo District from where he would have sexual intercourse with her. The Victim's parents reported her disappearance to the Police and when she resurfaced, she revealed how the Accused had been having sexual intercourse with her. She also revealed how the Accused at some point harbored her in Budaka at his sister's home to hide her from her parents and he could not allow her to return to her parents. It 15 was upon that background that the Accused was arrested and indicted accordingly.

#### **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 20 Court) (International Crimes Division) Rules, 2016 and the High Court (International Crimes Division) Practice Directions, 2011. The exhibits comprise of: Witness Statements, Victim's Birth Certificate, Report Cards, Statements of Police Officers who investigated the case, Plain and Charge and Caution Statements of the Accused, Police Forms, DNA Analysis Report, Exhibit Slips, among others.

#### **Jurisdiction**

Clause 6 (1) of the High Court (International Crimes Division) Practice Directions, 2011 provides for the jurisdiction of the International Crimes Division of the High Court. It stipulates that:

- 5 *"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 Geneva Conventions Act, cap. 363, the International Criminal Court Act, No. II of 2010 or under any other penal enactment." [Emphasis Mine]* - 10

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

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)

20 of the High Court (International Crimes Division) Practice Directions, 2011. Therefore, this Court has jurisdiction to hear this matter.

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

In all trials before the International Crimes Division of the High Court, it is a legal 25 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. 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

- 5 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 Rome Statute by the enactment of the International Criminal Court Act, 2010 is bound to perform its obligations under that Instrument. - 10

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*

15 *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 20 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 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 5 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 of the case.

However, it is prudent to note that the pre-trial hearing does not include hearing of 10 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.

#### 15 **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:** 20 *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 25 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

- 5 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 summary evidence and **need not call the witnesses expected to testify at the trial**. [Emphasis Mine] - 10

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*

15 *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;* - 20 *(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]** - 25

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" 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 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* 10 *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

15 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**

20 *Whether there is sufficient evidence to establish substantial grounds to believe that the Accused person committed each of the crimes he is charged with.*

#### **Count 1:**

# **Aggravated Trafficking in Persons contrary to Sections 3 (1) (a) and 5 (a) of the** 25 **Prevention of Trafficking in Persons Act, 2009.**

It is alleged by the Prosecution that:

*"Chelimo Julius Moses between the months of October 2021 and May 2022 in the Districts of Bukwo, Mbale and Kampala recruited or transported or harbored Chebet Emelda, a girl child aged 16 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 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*

10 *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:

15 *"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:

- 20 (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 and position of vulnerability; - (d)for purposes of exploitation; and - 25 (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 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 ID17)

which shows that the Victim was born on 29th 5 September 2006 which put her age at 15 years in 2021 and 16 years in 2022. This is corroborated by Police Form 3A (PE ID14), Forensic Report from Mbale General Clinic Laboratory and Forensic Medicines (PE ID15), Primary Leaving Examinations (PLE) results slip which also indicates the date of birth as 29th September 2006 (PE ID18), PE ID20, PE ID31, PE 10 ID32, PE ID33 and PE ID34 which all show that at the time of sexual exploitation

the Victim was below the age of 18 years.

Counsel for the Accused in his submissions also conceded that the Victim was aged 16 years when the offence is alleged to have been 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.

## 20 **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

25 David Wangutusi held that:

*"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 of the risks."*

5 Section 2 (d) of the Trafficking in Persons Act 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 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, 10 harmful rituals or practices. [Emphasis Mine]

To prove the two ingredients, the Prosecution disclosed statements of the Victim (PE ID31, PE ID32, PE ID33, and PE ID34) in which she revealed that on 17th of May 2022, the Accused made a phone call to her on a friend's phone and asked her to 15 escape from home and meet him at Chepkwasta Trading Centre. The next day, she escaped from home and went to Chepkwasta Trading Centre where she found the Accused with a waiting vehicle which she boarded and the Accused then transported her from Chepkwasta to Kitui Village, Kabei Sub-County in Bukwo District to the house of one Chesang Doreen where he had sex with her the whole night. This is 20 also corroborated by Chesang Doreen in her statement (PE ID4) in which she reveals that the Accused spent a night with the Victim at her home the duo having been hosted by her husband.

Further, the disclosed evidence of PE ID34 also shows that the Accused transported 25 and harboured the Victim at the home of one Chiplangat Edward in Kapsarur Sub-County in Bukwo District where he also had sex with her several times.

PE ID5 also shows that in the month of May 2022, the Accused transported and harboured the Victim in Budaka District at Caroline Chemtai's home (Accused's cousin) until 23rd August 2022 when she was ordered to take her to CID headquarters. The harbouring at Budaka was intended to get the Victim out of her 5 parents' sight who would subsequently lose interest in the charges of defilement.

The evidence also shows that the Accused occasionally visited and checked on the Victim while she was in Budaka.

The Prosecution also disclosed PF 3A (PE ID14) which revealed that the Victim was 10 also medically examined and she was found to have an old ruptured hymen caused by sexual penetration. The examination was done by Mbale General Clinic and Forensic services.

While invoking the decision in the case of *Uganda versus Mpagi Didas (supra)*,

- 15 Counsel for the Accused contended that the Prosecution did not disclose any evidence to show that the Accused allowed or tolerated the Victim in his dwelling. I respectfully disagree with Counsel for the Accused because the Victim in her statement A2- PE ID33, stated that the Accused picked her and took her up to his home in Bukwo District and could at times keep her in his sister's home in Budaka. - 20 The statement partly reads:

*"…he picked me and he took me to his home in Bukwo District and also he could keep me at his sister's home in Budaka though most times I was with him in his home in Bukwo and he could not allow me to go back to my parents..."*

25 This therefore confirms that the Accused harboured the Victim in his dwelling and even where she was harboured in other dwellings than the Accused's, it was at the

instance of the Accused and it is from those dwellings that the Accused is said to have sexually exploited her as per the disclosed evidence.

The Prosecution also disclosed evidence of DNA Analysis Report (PE ID30) which 5 also shows that the Accused (Chelimo Julius Moses) was the donor of the male DNA collected from the vaginal swab obtained from the Victim.

In light of the above, it is my finding that there are substantial grounds to believe that the Accused recruited the Victim, transported or harboured her in the different 10 places within Bukwo District 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 the Accused is the Local Council Five (LCV) Chairman of Bukwo District and the 15 Victim was a student in Senior two. The Accused who exercised authority over the Victim abused his power and kept on enticing her with money thereby exploiting her innocence and her position of her vulnerability.

In light of the above, I find that there is sufficient evidence from the Prosecution to 20 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. The said sub-25 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* 5 *guardian to acts of exploitation shall not be relevant."*

Consequently, I find that there is sufficient evidence to establish substantial grounds to believe that the Accused person committed the offence of Aggravated Trafficking in Children contrary to Sections 3 (1) (a) and 5 (a) of the Prevention of Trafficking 10 in Persons Act, 2009.

### **Counts 2 and 3:**

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

- 15 In Count 2, the prosecution alleges that: *"Chelimo Julius Moses on 28th November at Kapsiwo village, Kapsarur Sub-County in Bukwo District being a person in authority over Chebet Emelda, performed a sexual act on the said Chebet Emelda, a girl child aged 16 years."* - In Count 3, the same offence is said to have been committed on 18 20 th May 2022 at Kitui Village, Kabei Sub-county in Bukwo District.

### **Court's Consideration**

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

25 *"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:

*"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;* - 5 *(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* - *(e) where the offender is a serial offender."* **[Emphasis Mine]**

#### 10

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; - 2. That a sexual act was performed on her; - 15 3. That it is the Accused who performed the sexual act on the Victim; and - 4. That the Accused person was person in authority over the child.

All the above ingredients were discussed while dealing with Count 1. The disclosed evidence by the Prosecution reveals that the Victim was aged 16 years at the time of 20 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.

Counsel for the Accused on the other hand, contended that the disclosed evidence 25 did not satisfy the ingredient of the age of the Victim (below 14 years) and that it also did not prove that the Accused was a person in authority over the child. Counsel also contended that the Accused did not perform a sexual act with the Victim but he

only rescued her from her boyfriend with whom she was staying and this he did with the consent of the Victim's parents.

Concerning the age of the Victim, I need to observe that any one of the aggravating 5 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).

10 Having said that, I have to find out whether the Accused is a person in authority over the Victim. The Prosecution has adduced evidence to show that the Victim was a resident and also a student in Bukwo District and the Accused was the Chairman LCV of Bukwo District. It is my considered view and finding that the Accused is a leader in the District and the Victim submits to him. As a leader, he had the 15 responsibility of protecting the Victim is therefore, clearly in a position of authority over her.

I also need to observe that it is true that the Victim stated in her statement that she had a boyfriend called Amidu Anthony with whom she stayed in Kampala and 20 Entebbe for some weeks and it is also true that she left the home of Amidu at the instance of the Accused. However, she also revealed that the Accused was also her boyfriend and when he picked her up from Kampala, he spent a night with her in Mbale in a hotel room and the two shared a bed.

25 In light of the above, it is my finding that the disclosed evidence is sufficient to prove to the required standard that the Accused, being in a position of authority over the Victim performed a sexual act on her. Consequently, counts 2 and 3 are also confirmed against the Accused.

## **Conclusion**

- 5 Having considered all the evidence disclosed by the Prosecution, I find that it is sufficient to establish substantial grounds to believe that the Accused person committed each of the offences he is charged with. The charges are accordingly confirmed against the Accused and he is hereby referred for trial. - 10 I so order.

**Dated at Kampala this 6th May 2024.**

15 ................................................

**Alice Komuhangi Khaukha JUDGE 06/05/2024**