Uganda v Hagumimana Julius (Criminal Session No. 0230 of 2024) [2025] UGHC 343 (9 January 2025)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KISORO CRIMINAL SESSION NO. 0230 OF 2024 (Arising from KIS No. o029 of 2023) (Arising from CRB No. 182 of 2023)** 10 **UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTOR** VERSUS **HAGUMIMANA JULIUS**::::::::::::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

## 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

Hagumimana Julius who for the rest of my Judgment I shall refer to as the Accused is indicted on the first Count for Aggravated Trafficking in Children Contrary to **Section 3(1) (a)** and **5(a)** of the **Prevention of Trafficking in Persons Act**. The 20 particulars giving rise to the indictment are that Hagumimana Julius between the 15/02/2023 and 10/03/2023 at Buyora cell, Northern Ward, Chahafi Town Council in Kisoro District recruited or transported or transferred or received Mukeshimana Polina a girl aged fifteen (15) years by means of deception for the purpose of sexual exploitation or child marriage.

The Accused on the 2nd 25 Count is charged with Defilement Contrary to **Section 129(1) of the Penal Code Act**. The particulars giving rise to the indictment are that Hagumimana Julius between the month of December 2022 and 10th March 2023 at Gasenyi village, Mabunga Parish, Nyarusiza Sub County in Kisoro District performed a sexual act with Mukeshimana Polina a girl aged fifteen (15) years.

5 The Accused pleaded not guilty to both Counts.

**Representation.**

Ms. Erone Nambi (State Attorney) represented the Prosecution while Mr. Kibulirani Nicholas appeared on state brief for the Accused. The assessors for this trial were Mr. Tumushime Emmanuel and Ms. Idah Mugenga.

10 During the preliminary hearing pursuant to **Section 67** of the **Trial on Indictment Act** the Prosecution and defence agreed on the admission of Police Form 3A which was in respect of the medical examination of the Victim in this case Polina Mukeshimana and it was received as Exhibit P1.

**The burden and standard of proof.**

15 This being a criminal trial it is one whose proof lies squarely on the Prosecution and the Accused has got no duty to prove his innocence.

It is also proof beyond reasonable doubt. Any doubts unless fully explained must be resolved in favour of the Accused and the accused must only be convicted on the strength of the Prosecution case and not the weakness of defence case.

20 **See Ssekitoleko versus Uganda (1961) EA 531.**

On the first Count of Aggravated Trafficking in Children the Prosecution must prove:

- **1) That the Victim is a child.** - **2) That the Accused recruited, or transported or transferred or received** 25 **the Victim.** - **3) The performance of the above acts by means of deception.**

- 5 **4) For the purpose of sexual exploitation of the Victim.** - **5) Participation of the Accused in the commission of the offence.** - **1) Age.**

**Section 2(a)** of the **Prevention of Trafficking in Persons Act** defines a child as 10 a person below the age of 18 years.

The most reliable way of proving age of a child is by the production of a birth certificate followed by the testimony of the witnesses and medical evidence where available. It has however been held that the other ways of proving the age of a child can be equally conclusive such as the Courts own observation and common

15 sense assessment of the age of the child.

**See Uganda versus Kagoro Geoffrey H. C. Cr. Session No. 0141 of 2002.**

It is the evidence of the Victim Mukeshimana Polina (Pw1) that her present age is 17 years and she started living together with the Accused in February 2023 when she was 16 years. Her evidence is corroborated by that of her father Turinayo Gad

- 20 (PW2) who testified that his daughter Mukeshimana Polina (Pw1) was born on the 25/07/2007 and to this effect tendered to Court her immunization card that reflected her date of birth as 25/07/2007 and the same was received as Exhibit P2. Further corroborative medical evidence is contained in Exhibit P1 that indicates that basing on the Victims reproductive system she is of the apparent - 25 age of 16 years as of the 10/03/2023.

The Accused in his defence testified that in 2022 when he met the Victim Polina she told him that she was 19 years.

- 5 The evidence presented before this Court in the immunization card (Exhibit P2) the medical examination (Exhibit P1) and the testimonies of PW1 and PW2 has been sufficient to prove that Mukeshimana Polina (PW1) is a child below the age of 18 years. This Court had the opportunity of observing her as she testified and basing on her physical appearance and demenour I am convinced that she is 10 indeed a child. The defence of the Accused that she told him that she 19 years obviously does not make her an adult. - I find that the Prosecution has proved the first ingredient beyond reasonable doubt.

**2) That the Victim was transferred or transported.**

- 15 It is the evidence of the Victim Mukeshimana Polina (PW1) that she was 16 years at the time she met the Accused and was in Primary Seven at Kyiribumba primary School. She testifies that she met the Accused at Buyora at the roadside and he asked her to live with him by taking her to his home in Gasenyi village and that she accepted. - 20 It is her evidence that the Accused used a boda boda to transport her to his home in Gasenyi after she had picked her belongings from their home. This evidence is corroborated by that of Turinayo Gad (PW2) who testified that his daughter Polina Mukeshimana (Pw1) after she disappeared from home was recovered from the home of the Accused. - 25 The Accused in his own defence admits to taking the Victim Polina Mukeshimana (PW1) to his home as his wife.

5 It is therefore not in dispute that the Accused transported and transferred the Victim from her parents' home in Buyora village to his home in Gasenyi village.

The Prosecution has proved the 2nd ingredient beyond reasonable doubt.

**3) Deception.**

It is the evidence of the Victim Polina Mukeshimana (PW1) that when she met the 10 Accused he asked her to go and live with him and that she accepted and he is her husband.

The Accused in his defence describes the Victim as his wife and that they lived together as husband and wife.

The **Provisions** of **Article 31** of the **1995 Constitution** as amended are clear. The

15 age for marriage is a minimum 18 of years. The Accused in this case was just taking advantage of the ignorance of his Victim who was only a child when he offered to marry her.

I find the 3rd ingredient to be proved beyond reasonable doubt.

**4) Sexual exploitation and participation.**

20 sexual exploitation is defined under **Section 2(a) of the Prevention of Trafficking in Persons Act** as:

"*the use of a person in prostitution, sex tourism, pornography, the production of pornographic materials, or the use of a person for sexual intercourse or other lascivious conduct"*

- 5 It is the evidence of Mukeshimana Polina (PW1) that when the Accused took her to his home they engaged in sexual intercourse for 2 months that they lived together before his arrest and that as a result they now have a 14 months old son. The Accused in his defence admits to living with the Victim Polina as husband and wife and that together thay have a son born on 21/08/2023. - 10 The ingredient of use of a person for purposes of sexual intercourse is further corroborated by Exhibit P1 that determined that the Victim was in her early stage of pregnancy as of 10/03/2023.

I find the 4th and 5th ingredients proved beyond reasonable doubt.

After considering the evidence adduced by the prosecution and defence together

- 15 and in full agreement with the assessors it is my finding that the Prosecution has proved its case beyond reasonable doubt and I find the Accused guilty of the offence of Aggravated Trafficking in Children Contrary to **Section 3(1)(a)** and **5(a)** of the P**revention** of **Trafficking in Persons Act** and convict him of the same. - On the 2nd 20 Count of defilement Contrary to **Section 129 (1)** of the **Penal Code Act** the Prosecution must prove: - **a) That the Victim was below 18 years.** - **b) That there was a sexual act performed on the Victim.** - **c) That it was the Accused who performed the sexual act.**

**a) Age.**

The Prosecution presented Exhibit P2 which was the immunization card of the Victim Mukeshimana Polina (PW1) indicating her date of birth as being 25/07/2007. The medical examination in Exhibit P1 further corroborated the 10 same by making a finding that the Victim was 16 years basing on her reproductive system. The Victim's father Turinayo Gad (Pw2) also testified that the Victim was born on 25/07/2007.

The above evidence was not rebutted by the defence.

I find the Prosecution has proved beyond reasonable doubt that the Victim is a 15 child below 18 years.

**b) Sexual act and participation of the Accused.**

It is the evidence of the Victim Polina Mukeshimana (PW1) that she lived with the Accused as husband and wife. It is her evidence that they engaged in sexual intercourse and together have a 14 months old son.

20 The Accused in his sworn defence admitted that the Victim Polina was his wife and that together they have a son born no 21/08/2023.

The medical examination in Exhibit P2 corroborates the same with findings of early pregnant as of 10/03/2023.

It is therefore not in contention that the Accused engaged in sexual intercourse 25 with the Victim.

I find the 2nd and 3rd ingredients proved beyond reasonable doubt.

- 5 After considering the evidence adduced by the Prosecution and the defence together and full agreement with the assessors it is my finding that the Prosecution has proved its case beyond reasonable doubt and I find the Accused guilt of the offence of defilement Contrary to **Section 129(1)** of the **Penal Code Act** and convict him of the same. - 10 Before me,

……………………………….. **Samuel Emokor Judge 09/01/2025.**

15