Uganda v M I (HCT-00-CR-JSC 329 of 2023) [2023] UGHCCRD 106 (16 June 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA,

#### IN THE HIGH COURT OF UGANDA, HOLDEN AT KAMPALA,

#### AT THE NAGURU REMAND HOME.

#### HCT-00-CR-JSC-0329-2023

UGANDA===================================

#### **VERSUS**

M. I ((Juvenile Offender) =================================ACCUSED.

BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.

#### **RULING**

#### 1. Introduction

M. I a Juvenile Offender was indicted for trafficking in children contrary to **section** 5(a) of The Prevention of Trafficking in Persons Act, 2009 laws of Uganda where it was alleged that on the 11th day of November 2022 at Bukooza Lugala, Rubaga Division in Kampala District, he took N L a girl aged 13 years to his place of residence, for the purpose of having sexual intercourse with her.

Having been arrested as is required by law, the Juvenile Offender was subjected to medical examination on PF24A for a person accused of sexual assault on 12th November 2022.

2. When the juvenile offender was arraigned before this court and before he could take plea, his advocate counsel Winfred Adukule sought leave to address the court on a Human Rights Violation concern under section 8 of the Human Rights **Enforcement Act, 2019.**

In her submission she noted that section 8 of the Human Rights Enforcement Act, **2019** empowers this court to determine questions relating to the enforcement of violations of non derogable rights and freedoms as guaranteed under **Article 44 of** the 1995 Constitution and even further, that Section3 of the Prevention and **Prohibition of Torture Act, 2012 specifically prohibits torture.**

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#### THE REPUBLIC OF UGANDA,

#### IN THE HIGH COURT OF UGANDA, HOLDEN AT KAMPALA.

#### AT THE NAGURU REMAND HOME.

#### HCT-00-CR-JSC-0329-2023

UGANDA===================================

#### **VERSUS**

M. I ((Juvenile Offender) ==============================ACCUSED. BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.

#### **RULING**

#### 1. Introduction

M. I a Juvenile Offender was indicted for trafficking in children contrary to section 5(a) of The Prevention of Trafficking in Persons Act, 2009 laws of Uganda where it was alleged that on the 11th day of November 2022 at Bukooza Lugala, Rubaga Division in Kampala District, he took N L a girl aged 13 years to his place of residence, for the purpose of having sexual intercourse with her.

Having been arrested as is required by law, the Juvenile Offender was subjected to medical examination on PF24A for a person accused of sexual assault on 12th November 2022.

In her submission she noted that section 8 of the Human Rights Enforcement Act, **2019** empowers this court to determine questions relating to the enforcement of violations of non derogable rights and freedoms as guaranteed under Article 44 of the 1995 Constitution and even further, that Section3 of the Prevention and **Prohibition of Torture Act, 2012 specifically prohibits torture.**

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She informed this court that according to PF24 dated 12th November 2022 relating to the juvenile offender which was admitted on record as DE1, it indicates that it was filled by one Ashikakaye Gerald a Medical Clinical Officer who examined the child and made the following observation specifically in paragraph 7 of the form pertaining to the examination of the regions of the body;

(a) Head and neck; upper and lower GP bruises measuring 0.9cm.

$(b)$ Nil

- (c) Abdomen and back; bruises on upper back. - (d) Upper and lower limbs; tenderness

In paragraph 8 on the probable cause of the above injuries, he noted that the probable cause of the above injuries could be due to bodily assault of about 1-2 days old.

She went on to state that all this had happened after the child was arrested. That this child was arrested for defilement although subsequently he was charged and indicted with Trafficking in children under section 5(a) of The Prevention of **Trafficking in Persons Act.**

She prayed to this court to pronounce itself on the issue of torture before the juvenile offender could take plea and that if this court finds that there was torture, the child be accordingly discharged.

The state representative in the matter Ms. Barbra Kyomigisha did not oppose this prayer and neither did she offer a reply, she opted to leave it to court to make a suitable pronouncement on the issue.

#### 3. THE LAW

#### Article 24 of the 1995 Constitution of Uganda;

"No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment."

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#### Article 44(a) of this Constitution;

The right and freedom from torture is non derogable.

### Section 2 of the Prevention and Prohibition of Torture Act, 2012;

Defines torture in the following words:

- (1) In this Act, torture means any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as; - a) obtaining information or a confession from the person or any other person; - b) punishing that person for an act he or she or any other person has committed, or is suspected of having committed or planning to commit; or - c) Intimidating or coercing the person or any other person to do, or to refrain from doing, any act.'

Section 11 of the Human Rights (Enforcement) Act, 2019 further puts into effect the Constitutional provisions pertaining to human rights with dire consequences of breach or violation in the following words.

1. Derogation from non-derogable rights and freedoms

It is an offence for a person to derogate from a non- derogable right and freedom guaranteed under the Constitution.

- 2. Whenever, in any criminal proceeding- - a) it appears to the judge or magistrate presiding over a trial, - b) it is brought to the attention of the competent court; or - c) The competent court makes a finding that any of the accused person's non derogable rights and freedoms have been infringed upon, the judge or magistrate presiding over the trial shall declare the trial a nullity and acquit the accused person.

### 4. RESOLUTION

In view of the laws listed above, the only issue for resolution herein is Whether or not the juvenile offender was tortured to warrant his immediate discharge.

According to PF24A which is on record as the medical examination of the juvenile offender, the medical clinical officer expressly stated in the form that the offender was 17 years old and that he had bruises on his head and neck and on his abdomen and back. That he also had tenderness on his upper and lower limbs. He further stated the cause of the injuries to be recent bodily assault of about 1-2 days.

According to the indictment, the offence was committed on 11th November 2022 and the juvenile offender was examined on 12th November 2022 a day after he was arrested which is within the range of time described by the examining officer of injuries being between one and two days old as per exhibit DE1.

The summary of facts does not mention anywhere that this child had bruises or any other injuries prior to his arrest.

The summary of the case further suggests that the juvenile offender had a relationship with the victim who went to his place and they performed a sexual act on each other. She only took off on seeing her father on her way back from the juvenile offender's home after the sexual act. He was escorting her back.

This is a perfect case where a more serious offence of trafficking in persons was preferred instead of considering the facts as child to child sex. In courts view, preferring a more serious offence instead of a minor and cognate offence causes psychological torture to the suspect as section 2 of the Prevention and Prohibition of Torture Act is not exhaustive on acts of torture.

There is therefore no doubt that the juvenile offender was tortured both physically and psychologically, as I do not have any doubt in my mind that these injuries were orchestrated by his apprehenders who also changed his offence from defilement to trafficking in persons with the sole intent of inflating his offense.

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The facts herein fall squarely under section 2(2) (a) of the Prevention and Prohibition of Torture Act 2012 which defines torture to mean the intentional infliction of physical pain or suffering on an individual.

The injuries and pain inflicted on this child amounted to torture and hence a derogation of his Constitutional Rights under Articles 24 and 44(a) of the 1995 **constitution** (supra)

Section 11(2) (C) of the Human Rights (Enforcement) Act, 2019 on Derogation from non-derogable rights and freedoms is very clear, unambiguous and structured in mandatory terms to wit:

2.) Whenever, in any criminal proceeding-

- a) it appears to the judge or magistrate presiding over a trial, - b) it is brought to the attention of the competent court; or - c) The competent court makes a finding that any of the accused person's non derogable rights and freedoms have been infringed upon, the judge or magistrate presiding over the trial shall declare the trial a nullity and acquit the accused person.

This law was applied in the recent Court of Appeal decision of PAUL MUGOYA WANYOTO VS SGT OUMO JOSHUA AND ATTORNEY GENERAL CIVIL APPEAL NO.91 OF 2021; Wherein the learned justices found that; The conduct and actions of the 1st respondent as an investigating officer of torturing a one Patrick Mugisha alias Kantu Allan, A4 in Criminal Case NO. 75 of 2019 by inserting sticks tied with rubber band between his fingers commonly known as "baibbuli" and coercing him to hand over his certificate of title and land comprised in Busiro Block 312 Plot 841 land at Kalambi that was eventually sold to the Applicant, violated, contravened and infringed upon the said Kantu Allan's non derogable rights and freedoms from torture, cruel, inhuman and degrading treatment guaranteed under Article 24 and **44(a)** of the Constitution. Emphasis mine.

Consequently the court held that the trial of the appellant and Patrick Mugisha alias Kantu in criminal case No.75 of 2019 is a nullity for the blatant violations and infringement of the accused persons' non derogable rights and freedoms from torture, cruel, inhuman and degrading treatment, and other human rights and

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freedoms guaranteed under Articles 23, 24, 42 and 44(a) of the Constitution by the 1st Respondent.

This case was also authoritatively referred to in ROBERT ASIIMWE AKANGA AND ANOR VS ATTORNEY GENERAL, DIRECTOR OF DPP AND UGANDA REVENUE AUTHORITY MISC APPN NO.7 AND NO.8 OF 2022 wherein Hon. Justice Lawrence Gidudu held that:

"I am satisfied that the applicants have demonstrated that their non derogable rights and freedoms are infringed upon when they were mercilessly battered in the hands of the military that should have had no role in purporting to investigate a criminal case of Abuse of Office and **Theft. I hereby declare their trial in Criminal Session Case 1 of 2022 a nullity** and acquit them pursuant to section 11(2) of the Human Rights (Enforcement) Act, 2019."

In view of the above authorities and the undisputed fact that the child herein was tortured while in police custody, and by preferring a wrong charge under the circumstances, it is my finding that the juvenile offender's non derogable rights and freedom from torture, cruel, inhuman and degrading treatment as guaranteed under Articles 24 and 44(a) of the 1995 Constitution were violated while in police custody and his trial herein is declared a nullity.

I accordingly acquit him of the criminal charges as required under section 11(2) of the Human Rights (Enforcement) Act, 2019.

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Dated at Kampala this 16th Day of June 2023.

HON LADY JUSTICE MARGARET MUTONYI.

**CRIMINAL DIVISION.**