Uganda v K J and Another (HCT-00-CR-JSC 625 of 2022) [2023] UGHCCRD 107 (26 July 2023)

- THE REPUBLIC OF UGANDA, $\mathbf{1}$ IN THE HIGH COURT OF UGANDA. $\overline{2}$ HOLDEN AT KAMPALA, $\overline{3}$ **CRIMINAL DIVISION.** $\overline{4}$ HCT-00-CR-JSC-0625-2022 $\mathsf{S}$ UGANDA========================= $\equiv \equiv \equiv \equiv \equiv \equiv$ PROSECUTOR $6$ **VERSUS** $\overline{7}$ $1. K. J$ 8 2. N. I (Minors then) ================================ ACCUSED $\overline{9}$ 10 BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC. $11$ - **RULING** $12$ - Introduction $13$

$14$ **K. J and N. I** were indicted for the offence of Aggravated Robbery contrary to sections 285 and 286 of the Penal Code Act laws of Uganda wherein, it was alleged $15$ that on the 18<sup>th</sup> day of May 2021 at about 0300 hours at Kigobe, Lugala Zone, 16 Rubaga Division in the Kampala District, robbed one Ahimbisibwe John of a mobile 17 phone Huwaei P Smart valued at Ugx. 2.300.000/=, 2 Nokia single line phones 18 valued at 240,000/=, a wallet containing a National ID and at the time of the 19 robbery were in possession of a deadly weapon to wit a knife. $20$

They were arraigned before this court for plea taking. $21$

Before they could take plea however, counsel Moreen Kemigabo for the defence $22$ informed this court that at the time of their arrest, the two were juvenile offenders $23$ who had been unfairly incarcerated with adults in Luzira prison throughout their $24$ remand period. She submitted that this was a violation of their constitutional rights 25 to be remanded separately from adults even when in conflict with the law. She 26 $27$ consequently prayed to this court to terminate the proceedings against the accused persons who are now adults because of the injustice they suffered at their time of 28 arrest and remand. 29

$\mathbf{1}$

The state attorney did not object to the prayer and opted to leave it to court to decide on the fate of the accused persons. submitted that in view of M. V's physical appearance and the birth certificate on file, he was indeed a juvenile.

**Legal Principle** 33

$30$

It is trite law that a child offender should not be remanded in an adult prison 34 which is a constitutional right. 35

- Article 34 (6) clearly provides that "A child offender who is kept in lawful custody 36 or detention shall be kept separately from adult offenders". 37 - Section 11(2) of the Human Rights (Enforcement) Act, 2019 provides that: 38 - Whenever, in any criminal proceeding-39 - a) it appears to the judge or magistrate presiding over a trial, 40 - b) it is brought to the attention of the competent court; or 41 - The competent court makes a finding that any of the accused person's non 42

derogable rights and freedoms have been infringed upon, the judge or magistrate 43

presiding over the trial shall declare the trial a nullity and acquit the accused 44

- person. Emphasis mine. 45 - **Resolution.** 46 - A reading of the charge sheet on file PF53, drafted on 1<sup>st</sup> June 2021 clearly indicated 47 both A1 and A11 were 17 years old. Having been charged on 1<sup>st</sup> June 2021, they

48 were duly presented before the Magistrate Court of Mengo at Rubaga on 2<sup>nd</sup> June

49 2021. Whereas charges were read and explained to them and the matter adjourned

50 to 14<sup>th</sup> June 2021, no mention was made as to where the juveniles were to be 51

- detained pending committal. 52 - The matter next came up for mention on 13<sup>th</sup> May 2022 and the two were 53

committed to High Court for trial. The production warrant on file for this date was 54 issued to the superintendent of prisons Luzira Upper Prison who produced the two 55

- for committal. 56 - There is therefore no doubt whatsoever that the two have always been remanded 57

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in Luzira prison. 58

The Law is very specific and couched in mandatory terms when it comes to matters 59 pertaining to children. 60

61 Article 34 (6) supra, is emphasized in section 89(8) of the Children Act which provides in Mandatory terms that: "No child shall be detained with an adult 62 person". 63

The Children Act under section 91 also prescribes the period a child can spend on 64 remand before trial to be a period of 3 months for an offence punishable by death 65 and 45 days for a minor offence. 66

This court has on several occasions condemned the conduct of Justice Actors who 67 have negligently executed their tasks thereby causing injustice to juveniles in 68 conflict with the Law. in *Uganda Vs AYW HCT-00-CR-JSC-0422-2020*, the court laid 69 down guidelines that all key stakeholders in juvenile justice should apply in order 70 to reverse the ailing cases of injustice occasioned to juvenile offenders. 71

This case adds to the statistics of the many juveniles who are unjustly suffering the $72$ evil of being remanded in adult prisons due to the negligent acts and omissions of $73$ those in authority. 74

- Whereas the accused persons herein have now matured, while in adult prison, this 75 court being a court of justice cannot turn a deaf ear to their plight relayed by their 76 attorney. All stake holders in the criminal justice system despite having a charge 77 sheet with clear age specifications decided to remand the juveniles as they then 78 were in Luzira Prison Upper which is exclusively an adult prison. 79 - In UGANDA VS M. V, HCT-00-CR-JSC-0197-2023 this court noted that; 80 - "the prisons officers are not obliged to admit juveniles in the adult prison 81 and where the first stake holders have made errors, Prisons authorities have 82 a duty to inform court that the offender is a juvenile. ... This was a gross 83 failure on the part of the prisons being the custodians of the prisoners and 84 who are under a direct instruction of the law to not remand juveniles in their 85

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prisons."

In view of the finding that indeed the accused persons' Constitutional and human rights were violated at trial by remanding them with adults in a prison for adults and in view of Section 11(2) of the Human Rights (Enforcement) Act, 2019, I declare this trial a nullity and accordingly acquit the accused persons of the charges herein.

They are set free unless held over other lawful charges.

The state is free to appeal against this ruling if not satisfied.

- Dated at Kampala this 26<sup>th</sup> Day of July 2023.

HON LADY JUSTICE MARGARET MUTONYI.

**CRIMINAL DIVISION.**