Uganda v Kayemba (Criminal Session 312 of 2020) [2023] UGHCCRD 189 (30 October 2023)

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THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA,

HOLDEN AT KAMPALA,

HCT-00-CR-SC-0312-2020.

======PROSECUTOR. **UGANDA ================**

VERSUS

$==ACCUSED.$ **KAYEMBA IBRA===================**

BEFORE HON. LADY JUSTICE MARGARET MUTONYI. JHC.

**RULING.**

- 1. Introduction. - 2. Kayemba Ibra, herein after referred to as the accused was indicted with aggravated defilement contrary to section 129(3), (4)(a) of the Penal Code Act, laws of Uganda. - 3. It was alleged that on the 5<sup>th</sup> day of June 2019, at Maganjo A zone, Nabweru division in the Wakiso district, the accused performed a sexual act on NJ and NS. girls aged 10 and 6 years respectively. - 4. The accused was arraigned in court on 18<sup>th</sup> June 2019 where the charges were read and explained to him. He could not take plea because the case was beyond the jurisdiction of the court before whom he appeared. - 5. On 15<sup>th</sup> July 2019, he appeared for mention and the case was adjourned to 29<sup>th</sup> July 2019. - 6. The next appearance was on 13<sup>th</sup> January 2020 after close to six months contrary to Section 122 of the Magistrates Courts Act Cap 16 that provides for adjournments as follows: - 7. "Before or during the hearing of any case, the court may adjourn the hearing if sufficient cause is shown, on due application made in open court for the adjournment; but when the hearing of evidence has first began the trial shall be continued from day to day until the trial is concluded unless

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the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

- 8. Where a hearing is adjourned under this section, the court shall appoint a time and place for the resumption of the proceeding; and in the meantime the court may, subject to Section 75(1) suffer the accused person to go at large or may, by warrant, remand him or her in some prison, remand home or other suitable place or release him or her upon entering into a recognizance with or without sureties, at the discretion of the court, conditioned for his or her appearance at the time and place to which the hearing or further hearing shall be adjourned; but no such adjournment shall be for more than 30 clear days, or if the accused person has been committed to prison or other place of security, for more than 15 clear days, the day following that on which the adjournment is made being counted as the first day." - 9. This flaw could however be excusable because the world was faced with Covid 19 pandemic which affected the normal operations of court. He was eventually committed to the High court for trial on 3<sup>rd</sup> February 2020. - 10. His case was fixed for hearing on $31/7/2023$ before this court after 4 years, one month and 13 days. It is quite a long time of waiting for trial while on remand. - 11. When the prosecution tried to serve the complainant, the mother of the victim Nakisozi Racheal who recorded a statement and left her telephone contact, Number 0704770774 denied her names, yet she was still on the same telephone contact. She also denied knowledge of the victims and the accused and declined to come to court. She made service of court process impossible. - 12. The learned senior state Attorney Babra Kyomugisha faced with a hostile and evasive complainant sought for an adjournment to consult the DPP with a view of procuring a Nolle Prosque after she further discovered that the PF3A for both victims, did not disclose the sexual act, one of the essential ingredients of aggravated defilement. - 13. Learned counsel Shiella Kihumulo for the accused objected to the adjournment on the ground that the accused has suffered gross violation of his right to a fair trial already more so over tramped up charges since there

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was no complainant pursuing the case and PF3A for both victims does not disclose the sexual act. She prayed for the case to be dismissed.

- 14. Court noted that mere dismissal of the case would not disclose the injustice that was committed against the accused in this case and many others who fall under the same category. The accused was released on court bond and the case adjourned hence this ruling. - 15. As High Court, this court has the mandate to set precedents that should guide the criminal justice actors where the procedure seems to have a lacuna which if not addressed can lead to injustice. - 16. In this ruling, court is going to address the lacuna that is apparent under Section 168 of the MCA that provides for committal proceedings.

#### 17. The law applicable.

- 18. Whenever any person is brought before court under the criminal justice system, his or her rights as a suspect must be respected and these rights are enshrined in the 1995 Constitution of the Republic of Uganda as amended. - 19. The officers charged with the prosecutorial duties and adjudication of criminal cases are obliged to apply the Constitutional provisions and the relevant laws in the execution of their mandate. - 20. The procedure should not be flawed at any one stage because it would result in abuse of the legal process and perversion of justice. - 21. In the instant case, the law applicable is found under Articles $28(1)(3)(b)$ , 120(5), and 126 of The 1995 Constitution of the Republic of Uganda as amended, Section 168 of the Magistrates Court Act, Cap 16 and Section 1 of the Trial on Indictments Act, Cap 23.

#### 22. Issues for courts resolution

- 23. No specific issues were framed by the officers of court, but the facts of this case drew the attention of court to the fundamental issue pertaining to the committal procedure of suspects for trial by the High Court. This court therefore framed the following issues: - 24. What is the import or relevance of the committal proceedings? - 25. What should be contained in the summary of the case at the time of committal of an accused for trial by the High Court?

#### **26. RESOLUTION OF ISSUES.**

- 27. I will start with the first one. What is the import or relevance of the committal proceedings? - 28. Section 1 of the Trial on Indictment Act cap 23 provides that: - 29. "The High Court shall have jurisdiction to try any offences under any written law and may pass any sentence authorized by law, except that no criminal case shall be brought under the cognisance of the High Court for trial unless the accused person has been committed for trial to the High Court in accordance with the Magistrates Courts Act." - 30. This section is in mandatory terms and much as the High Court has unlimited jurisdiction to try any offence under the law, such unlimited jurisdiction in criminal matters triable by the High court is only conferred on it after the mandatory committal process. The procedural process is provided for under section 168 of the Magistrates Courts Act Cap 16 - 31. Section 168 of the MCA provides for committal for trial by the High Court in the following terms. - 32. "When a person is charged in a magistrate's court with an offence to be tried by the High Court, the Director of Public Prosecutions shall file in the magistrate's court an indictment and summary of the case signed by him or her or by an officer authorized by him or her in that behalf acting in accordance with his or her general or special instructions. - 33. The summary of the case referred to in subsection (1) shall contain such particulars as are necessary to give the accused person reasonable information as to the nature of the offence with which he or she is charged. - 34. When a person charged with an offence to be tried by the High Court appears before a magistrate and the Director of public prosecutions has complied with subsection (1), the magistrate shall- - 35. Give the accused person a copy of the indictment together with the summary of the case; - 36. Read out the indictment and summary of the case and explain to the accused person the nature of the accusation against him or her in a language he or she understands and inform him or her that he or she is not required to plead to the indictment.

37. Commit the accused person for trial by the High Court and transmit to the registrar of the High Court copies of the indictment and of the summary of the case.

- a. (4) If a person committed for trial by the High Court is on bail granted by any court without prejudice to his or her right to apply to the High Court for bail, the bail shall lapse, and the magistrate shall remand him or her in custody pending his or her trial. - b. (5) Subsection (4) shall not be construed as limiting the power of High Court to grant bail at any time to a person accused of an offence".

38. This section is akin to the criminal procedure Code and civil procedure rules that guide actors in the justice system on what procedure to follow.

39. It falls under the principle of rules of procedure which have been described as handmaidens of justice, to ensure that justice prevails. This was espoused in the case of Shashikanti C Patel v Oriental Commercial Bank [2005] KLR where Justice Maraga J held inter alia that "we should never lose sight of the fact that rules of procedure, though they may be followed are the hand maidens of justice. They should not be given a pedantic interpretation which at the end of the day denies parties justice".

40. In my view with the cardinal principle of the law that rules of procedure are hand maids of justice, the rules or any law prescribing procedure must serve the justice of the case as the court may determine in the circumstances of the case.

41. In the case of Barihaihi and Another V Attorney General, Constitutional Petition Number 23 of 2011, Justice Fredrick Egonda-Ntende JA held that:

"Committal proceedings are a pretrial procedural requirement for persons who have been charged with criminal offences to be tried by the High Court. It is a procedural mechanism that does not oust the jurisdiction of the High Court..."

42. He went on to hold that:

"In my view committal proceedings are intended to promote the right to a fair trial. Committal proceedings do not infringe on an accused's right to a fair hearing. Under section 168 of the Magistrates Court's Act, the court must explain to the accused person the nature of the charge against him or her during committal proceedings. The substance of the indictment and summary of the case


is read to the accused person and copies of the same are availed to him or her. These must contain particulars that are necessary to give the accused person reasonable information as to the nature of the offence with which he or she is charged. This is to enable the accused person to prepare for his or her defence. The accused can also apply for pretrial disclosure of material statements and exhibits subject to the discretion of the trial court. (Soon Yeon Kong Kim and *another Vs Attorney General. Constitutional Reference no.6 of 2007(unreported)*

43. The petitioner does not attack Section 168 of the Magistrates Courts Act that provides for an accused to be provided with a summary of the case rather than the original formulation, before that Act was amended which was a summary of the evidence that was to be adduced at the trial. I suppose, however, that the ill effects of this formulation have been rendered otiose by the decision in Soon Yeon Kong Kim and another vs Attorney General (supra) compelling the state to provide disclosure of the evidence to be adduced against the accused before the commencement of the trial."

44. He further held that "Article 28(3) (e) of the Constitution categorically states that where an accused person is charged with a criminal offence which carries a sentence of death or life imprisonment, he is entitled to legal representation at the expense of the state. This requirement is mandatory. The right accrues on being charged. This would be immediately before or on appearing for the first time at a Magistrates court where the charges are read out.....it is the failure to provide counsel which is independent of committal proceedings that would breach Article 28 (3)(e) of the Constitution. An accused can enforce his right to legal representation at the expense of the state in the normal way of enforcement of human rights."

45. Most of the Prosecutorial work of the DPP is executed by the State Attorneys who are qualified lawyers as per the mandate of the office of the Director of Public prosecutions specifically under Article 120 (3) (a)(b) and (c) as provided for under Article 120 (4) (a) and (c) of the Constitution. They supervise investigations, sanction charge sheets after perusing the police files and prepare the indictment and summary of the case and file it in the Magistrates court. Section $168(1)$ of the MCA refers.

46. As the Office of the DPP executes its constitutional mandate, through its foot soldiers, the learned State Attorneys, it must do so within the provisions of the constitution from which they derive prosecutorial powers.

47. Article 120 (5) of the Constitution of the Republic of Uganda clearly provides that:

"In exercising his or her powers under this article, the Director of Public Prosecutions shall have regard to the public interest of the administration of iustice and the need to prevent abuse of the legal process."

48. My interpretation of the above article is that the Office of the Director of Public Prosecutions shall have regard to the public interest of the administration of justice by ensuring that all suspects of crime where investigations prove a prima facie case should be arrested, charged and effectively prosecuted so that the public feels secure.

49. At the same time, the Office of the DPP Should ensure that no person accused of a criminal offence where the investigations do not reveal sufficient evidence that can prove all the essential ingredients of the offence is charged.

50. As clearly spelt out by Justice Egonda Ntende, JA in Barihaihi and Another V Attorney General (supra), Committal proceedings are intended to promote a right to a fair trial.

52. Where a suspect has been charged and remanded pending committal, the constitutional time given of 180 days under Article $23(6)(c)$ of the Constitution before one qualifies for consideration of mandatory bail, should be enough to have the office of the DPP put its file in order and not just prepare committal papers without sufficient evidence and commit the accused for trial before the High Court.

53. The summary of the case should ensure that such a person is not committed for trial in the case of charges triable by the High court when facts do not establish all the essential ingredients of the offence charged.

54. Section 168(2) of the MCA is very specific. It should not be treated as a matter of course. It clearly provides that the summary shall contain such particulars as are necessary to give the accused person reasonable information as to the nature of the offence with which he or she is charged.

$\sim$ 55. The committal proceedings are therefore intended to help the office of the DPP at this stage to inform court and the accused person that they are ready with sufficient evidence to have the accused arraigned before the High Court for trial.

56. In case they do not have sufficient evidence, the officers are under an obligation to formally write to the Director of Public Prosecutions forwarding the file for preparing a nolle proseque.

57. Committal proceedings are therefore intended to have the office of the DPP have deserving cases/suspects committed for trial before the High Court and not just any case and or any accused person that has been charged with a capital offence.

58. I am afraid to say that this was not the case with the accused person before court.

59. Whereas the procedure of committing accused persons charged with cases of a serious nature is well intended, the actors in the criminal justice system can easily abuse it causing injustice if they do not execute their statutory duties while mindful of the Constitutional rights of suspects who have a right to a fair hearing which includes a right to be presumed innocent until proven guilty and a right to liberty.

60. Committing an accused person without sufficient evidence at the time of committal is in all aspects a violation of his or her constitutional right to a fair hearing. This should not happen with professional lawyers representing the office of the Director of Public Prosecutions as it amounts to professional negligence.

61. This brings me to the second issue of **what should be contained in the summary** of the case at the time of committal of an accused person for trial by the High Court?

62. In the instant case, the learned state Attorney recorded in the summary of the case that:

63." That the first victim N. J was aged 10 at the time of the defilement, that the second victim N. S was aged 6 at the time of the defilement 64. That the accused Kayemba Ibrah is an uncle to both the victims.

- 65. That on the $5^{th}$ day of June at around 0300/c in the morning while the two victims and their father Kiyemba Samuel where sleeping, N. J was woken by her dad to open the door for the accused who would sometimes sleep at their home. - 66. That Nakiyemba opened for the accused and he slept on the carpet near the victims. - 67. That at 0500/c in the morning the victim's father left for work leaving the victims alone with the accused. - 68. That N. J changed from her bed and slept on her parent's bed, while there, the accused joined her and she extended to the wall. - 69. That the accused pulled N. J back, he pushed his sexual organ into the victim's behind and the victim felt a lot of pain. She ran out of the house and went and hid in the toilet. - 70. That by the time N. J went back to the house the accused had left and her sister N. S told her that the accused had slept on her and tried to push his sexual organ into hers but she started crying and he decided to leave her. - 71. That the two victims informed their mother and father later upon their return home respectively and the matter was reported to police. - 72. The police carried out investigations by doing the following; - 73. The two victims were examined on Police form 3A. N. J was found to be 10 years while N. S was 6years. - 74. The accused was examined on police form 24 and found to be an adult of sound mind. - a. Prosecution shall tender and rely on the following exhibits - 75. Police Form 3A in respect to the victims - 76. Police Form 24 in respect of the accused - 77. Wherefore Prosecution will contend that the accused person has no valid defense and shall pray that the honorable court convicts him as indicted. - 78. Dated at Nabweru this 10<sup>th</sup> day of Feb 2020 - 79. Seera Rhita Becky. - **80. State Attorney Nabweru** - **81. For Director of Public Prosecutions"** - 82. Police Form 3A for the victim N. S dated 11<sup>th</sup> of June 2019 clearly indicated under paragraph 7(e) and (f) that her genitals were normal with an intact

hymen (virgin). The buttocks and anus had no injury and under paragraph 8, the probable cause of injury was none.

- **83.**Police Form 3A for **N. J**, the second victim had the same findings of no injuries on genitals, the buttocks and anus, and no probable cause of injurv. - **84.** From this summary it is apparent that the prosecution did not have any evidence whatsoever of the essential ingredient of a sexual act as there is no way, the 10 year old victim who claimed she was penetrated from behind and felt a lot of pain and the 6 year old who claimed the accused tried to penetrate her through the vagina would have no injuries at all on medical examination. - 85. What are these particulars that will give reasonable information to the accused? - **86.** The presumption is that by the time an accused person is committed for trial by the High Court, the prosecution is ready to adduce evidence against him or her. At this stage of the proceedings, the summary of the case should contain all the relevant facts of the case, the kind of evidence that will be adduced that proves all the essential ingredients of the offence. - 87. Section 168 (5) of the Magistrates Courts Act is to the effect that "When a person is charged in a magistrate's court with an offence to be tried by the High Court, the Director of Public prosecutions shall file in the magistrate's court an indictment and summary of the case signed by him or her or by an officer authorized by him or her in that behalf acting in accordance with his or her general or special instructions. - 88. The summary of the case referred to in subsection (1) shall contain such particulars as are necessary to give the accused person reasonable information as to the nature of the offence with which he or she is charged. - 89. In a case of aggravated defilement like the instant one, the summary of the case should show that the prosecution has evidence to prove that: - **90.** There was a sexual act which is by way of Medical evidence usually contained in PF3A. This shows the injury on the sexual organ (genitals) of the victim and probable cause of the injury.

- 91. That the sexual act was performed on a child below 14 years of age which can also be proved by medical evidence on the same PF3A or birth certificate, immunization card, school report, or parents statement. - 92. That it was the accused who committed the offence (through either direct or circumstantial evidence). - **93.** Evidence of the sexual act is very crucial. Where the victim is young forensic science can be used by conducting DNA if the male organ was used against the child who cannot speak or could not identify the accused. - **94.** The accused person has a right to be given the medical evidence that the prosecution intends to rely on to prove the sexual act. It may not be necessary to disclose the witnesses if the prosecution feels they need to be protected at that stage, but the content of their evidence must be disclosed. - 95. This would enable the accused person to understand the nature of the case against him and the evidence that the prosecution has against him to enable him prepare for his case. - **96.** When all the above is very clear in the summary, the magistrate can then ably apply Section 168 (3) (b) by reading and explaining to the accused the nature of the offence in a language he or she understands which nature should include all the essential ingredients of the offence. - **97.** In my humble view, the intention of the legislature in providing for committal proceedings for all cases triable by High Court or where the Director of Public Prosecutions is desirous of having cases within the jurisdiction of the Magistrates Court tried by the High Court, cannot be interpreted to mean a process of rubber stamping whatever the prosecution comes up with by the Committing magistrate. - **98.** The intention was to ensure that only cases worthy of the investment of the precious time, resources and legal mind and expertise of the judges are committed for trial before the High Court. - **99.** This committal process if well-handled can safe guard against the violation of the constitutional rights of an accused of a fair trial which includes presumption of innocence and a speedy trial under Article 28(1) and (3). - **100.** It would also reduce on the instances of keeping innocent persons on remand for a long time before they are finally cleared by the High court.

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- 101. The reason the law provides for lapse of bail for those on bail at committal is the presumption that all those committed have a prima facie case. - 102. In view of the above authorities, and the law, the committal proceedings should take this course to avoid perversion of justice and violation of the right to a fair trial of an accused person who at the stage of committal is still presumed innocent under the law; - The accused persons should have legal representation at the expense 103. of the state during committal proceedings. Article 28(3) (e) of the Constitution is to the effect that "where an accused person is charged with a criminal offence which carries a sentence of death or life imprisonment, he is entitled to legal representation at the expense of the state". Committal Proceedings are a very serious process in the trial of an accused person and therefore ensuring they have legal representation is part of the accused person's right to a fair trial and as Justice Fredrick Engonda JA justly stated in the case of Barihaihi and Another V Attorney General, Constitutional Petition Number 23 of 2011, (supra) this right accrues on being charged. - 104. The Prosecution must ensure that it follows due process during this pretrial procedure which is its mandate under Article 120 (5) of the Constitution which states that; "In exercising his or her powers under this article, the Director of Public Prosecutions shall have regard to the public interest of the administration of justice and the need to prevent abuse of the legal process." - The State Attorney should therefore ensure that at the time of 105. committal, all the facts of the case necessary to prove all the ingredients of the charge/indictment in the High Court are present and should be included in the summary of the case. - The State Attorney should attach to the summary of the case, the 106. relevant documentary evidence or any forensic evidence such as PF3A, PF24A, PF48B, and any other relevant information that will help the accused understand the charges he or she is to answer and the evidence in support of such charges so that they can ably prepare their defence or choose to plead guilty to the charges.

- 107. Magistrates have a duty to ensure that the ingredients of the offence are all present in the summary of the case and that there is enough evidence for a prima facie case at this pretrial hearing before committing the accused person to High Court. - The magistrate should make sure that the accused person's 108. constitutional right to legal representation as provided under Article $28(3)(e)$ of the Constitution is not violated to avoid a miscarriage of justice. - Had the above procedure proposed by this court been adopted, the 109. accused person would not have been committed for trial with such insufficient evidence on the police file leading to incarceration of over 4 years. - **110.** In view of the above, this court is exercising its discretion under section 17(2) of the Judicature Act which provides that; - "With regard to its own procedures and those of the magistrates" 111. court, the High Court shall exercise its inherent powers to prevent abuse of the process of the court by curtailing delays, including the power to limit and stay delayed prosecutions as may be necessary for achieving the ends of justice." - Referring the matter for the formal processing of the Nolle Proseque 112. in this case would just amount to unnecessary delay for the accused person to get his right to freedom back. - The case is therefore dismissed as the entire criminal prosecution of 113. the accused right from sanctioning the charge sheet and committal process was an abuse of the court process. - The accused person is discharged accordingly. 114. - Before I take leave of this case, I wish to point out that the officers of 115. the Directorate of Public Prosecutions are not subject to the direction or control of any person or authority (see Article 120(6) of the Constitution) just like judicial officers (Article $128(1)$ , (2) of the Constitution). - They are however subject to the provisions of the Constitution 116. particularly Article 120(5). - 117. They should therefore take guidance in this ruling seriously and avoid causing a miscarriage of justice and abusing the legal process by sanctioning charges and committing suspects without sufficient evidence

well aware that the prisons in Uganda are over congested and the High Court is not possessed with sufficient man power and resources to handle these cases as and when they are committed. Their commitment to the legal process without abusing it will lead to confidence in the criminal iustice system and ultimately respect for the rule of law.

- It does not cost money to execute one's statutory duty with integrity, 118. but the cost of professional negligence leading to pre trail incarceration of an innocent man/woman cannot be fathomed out as any miscarriage of justice is costly. Justice is priceless, let all actors in the justice system embrace it. - The office of the Directorate of Public prosecutions should embark on 119. a massive weeding out exercise and hold the culprits of professional negligence accountable.

Dated at Kampala this 30<sup>th</sup> day of October 2023.

Margaret Mutonyi, JHC.

Judge Criminal Division.

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