Uganda v Kakube Stone alias Topher (Criminal Session 74 of 2022) [2023] UGHC 504 (29 June 2023)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH OF UGANDA AT IGANGA**

**CRIMINAL SESSION CASE NO. 074 OF 2022**

**UGANDA ========================== PROSECUTION**

**VERSUS**

**KAKUBE STONE alias TOPHER ============= ACCUSED**

**BEFORE: HON. MR. JUSTICE BATEMA N. D. A, JUDGE:**

**RULING:**

Kakube Stone alias Topher was indicted with one count of **MURDER** contrary to **Sections 188** and **189** of the **Penal Code Act**. It was alleged that on the 18th day of January, 2014; the accused and others still at large at Nambote Nkolota in the Namutumba District murdered Naibira Rebecca.

He first appeared in Court on 17/06/2015 and was then remanded at Kirinya Remand Prison. He was committed to the High Court for trial on 16th May, 2016. He has been on remand for over 9 (Nine) years awaiting trial.

On 03/04/2023, Counsel Mudhumbusi raised a Preliminary Objection to the trial of the accused. He pointed out the fact that the accused at the time of commission of the offence was a minor aged 17 years. That being a child, he was illegally remanded as an adult instead of being kept at a Remand Home as a Juvenile offender.

Counsel further submitted that the Juvenile offender was illegally charged as an adult and cannot be tried and sentenced as an adult. That having spent 9 (Nine) years on remand, the child had already served what would have been his maximum order of 3 (Three) years and therefore this trial is in vain, serving no legal purpose at all.

The State Attorney Mr. Arap Malinga conceded that the *‘*the person before Court was a Juvenile offender aged 17 years at the time he was charged and remanded. He has served thrice the maximum order even if Court was to rule that there is proof of any offence against this child.

Section 2 of the Children Act defines a child as a person below the age of 18 years. Such a minor has several rights in a criminal trial that must be observed, protected and enforced by the Courts.

**REMAND OF CHILDREN**

Under Section 91 (a); where the child is charged alone or together with adults for an offence triable by the High Court remand in custody shall not exceed six months.

Under Sub-section (6) of Section 91; no child shall be detained in an adult prison. Kakube’s detention at Kirinya in this case was illegal.

After the six months, the child is entitled to automatic bail/bond. Where the case is not completed within 12 months from the date of taking plea before the High Court; the child shall be discharged and shall not be liable to any prosecution. This law bars any prosecution of the child once the hearing of any case is not completed within 12 months.

Section 99 (4) provides as follows;

*“Where a case to which Subsection (3) applies is not completed within twelve months after the plea has been taken, the case shall be dismissed and the child shall be discharged and shall not be liable to any further proceedings for the same offence”*.

In the instant case Kakube was a Juvenile who took plea last month. He would literally still be liable for prosecution because 12 months have not yet lapsed since he took plea.

However, it is over 8 years since this Juvenile offender was committed to the High Court for trial. The High Court ought to have taken his plea immediately and then fixed his trial at the earliest convenient session. Time is of essence in all matters affecting children. Section 99 (1) provides that every case shall be handled expeditiously and without unnecessary delay. It defeats the purpose of the law for the High Court to fail, ignore or refuse to take plea of a child committed to the High Court for trial. By the time an accused person or Juvenile offender is committed to the High Court; all inquiries are presumed to be complete. The Government must coordinate all the agencies involved in the administration of criminal justice to take plea immediately upon committal and start hearing the cases at the nearest convenient session. We must give the law relating to children a purposive interpretation with pro-active practices.

The practice of the Prosecution being ready while the Judiciary is not ready to conduct trials cannot be blamed on the accused or the child offender. Failure to expedite trials violates the right to a fair and expeditious hearing guaranteed under Article 28 and 44of the Constitutionof the Republic of Uganda.

As pointed out by Counsel on State brief and conceded to by the State Attorney, the Juvenile offender’s rights have been violated. He is presumed innocent until proved guilty under Article 28 (3) of the Constitution of the Republic of Uganda.

Even if this offender was to be tried and found guilty, the High Court would remit him to the Family and Children Court (FCC) for an order. He would have been liable to serve an order of imprisonment NOT exceeding 3 (Three) years under Section 94 (g) of the Children Act.

Having spent 9 (Nine) years on remand, this child has already but illegally served the maximum detention order three times!! This is both unfair and illegal.

**LACUNA**

It appears the law did not envisage a child being illegally, wrongly and deliberately detained as an adult. There is no specific provision in the Children Act addressing such a scenario.

**CONCLUSION**:

My liberal and purposive interpretation of the Children Act is to the effect that any trial of a child committed to the High Court must be commenced within six (6) months. Time is of essence and remains of essence even after the committal proceedings. A child remains a child even if the Prosecution or Police upgrades the child’s age. We look at the age of the offender at the time he or she committed the offence when enforcing his or her legal rights. This offender was indeed a Minor who should never have been kept in custody for more than six months. The plea of this Minor should have been taken within reasonable time of six (6) months upon committal to the High Court, and the trial should have been completed within twelve months after taking plea. We must always fast track cases concerning children.

This current trial coming later than three (3) years after committal is illegal and will serve no legal purpose at all. I discontinue the trial under Section 17 (2) (a) of the Judicature Act read together with Sections 94 (g) and 99 of the Children Act.

The Juvenile Offender is discharged and set free unless he is being held on other lawful charges.

I so rule in the interest of justice.

**\_\_\_\_\_\_\_\_\_\_\_**

**JUDGE**

**29/06/2023**