Uganda v M. V (HCT-00-CR-JSC 197 of 2023) [2022] UGHCCRD 103 (3 July 2022)

Full Case Text

| IN THE HIGH COURT OF UGANDA, $\overline{2}$ HOLDEN AT KAMPALA, 3 CRIMINAL DIVISION. $\overline{4}$ HCT-00-CR-JSC-0197-2023 $\mathsf{S}$ UGANDA=================================== 6 VERSUS $\overline{7}$ M. V (Juvenile Offender) ================================ACCUSED. 8 9 BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC 10 RULING 11 1. Introduction 12 M. V a juvenile offender was indicted for Rape contrary to sections 123 and 124 of 13 the Penal Code Act laws of Uganda where it was alleged that on the 9 th day of 14 August 2022, he had unlawful carnal knowledge of a lady M. I without her consent. 15 When this case came up for plea taking during a juvenile session held at Naguru 16 Remand Home on 14 th June 2023, Court found out that the juvenile offender was 17 not at the remand home. 18 The state attorney Ms. Tabaro Caroline informed court that the juvenile offender 19 was believed to be incarcerated at Luzira Prison. 20 A production warrant was issued to Luzira prison to have him produced before $21$ court on the $21^{st}$ of June 2023 for plea taking. $22$ On the 21 st day of June 2023, the juvenile was accordingly arraigned before this $23$ court for plea taking. $\overline{24}$ Before he could take plea, Counsel Zimbe Zephaniah who held brief for Counsel 25 Winifred Adukule with instructions to proceed brought it to the attention of this 26 court that the person before court was a juvenile aged 17 years. He based his $27$ submission on the birth certificate issued from NIIRA which was on file which 28 indicated that M. V was born on the 30 th day of March 2006 at Mengo Hospital, 29 Rubaga Division to Ddungu Remigio and Nalukenge Grace. 30 This implied that in August 2022 when the juvenile was arrested, he was only 16 31 years old and yet he was remanded to Luzira Upper Prison which is a remand prison 32 | $\mathbf{1}$ | THE REPUBLIC OF UGANDA, | |----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------|-------------------------| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 33 | for adults. |

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Counsel submitted further that his remand in an adult prison was contrary to $34$ section 89(8) of the Children Act CAP 59 which provides in mandatory words that 35 "No child shall be detained with an adult person. He submitted that his remand 36 in an adult prison amounts to torture. He prayed to this court to prevent any further 37 violation of the child's rights and declare the trial a nullity. 38

The state attorney did not object to the prayer and submitted that in view of M. V's 39 physical appearance and the birth certificate on file, he was indeed a juvenile. 40

#### 2. The law Applicable. 41

Children's rights are enshrined in the 1989 United Nations Convention on the Rights 42 of a child (UNCRC) which is the most ratified human rights treaty in the world. 43

Uganda ratified it in 1990 committing itself to full realization of children's rights as 44 enshrined in the Convention on the rights of a child and its attendant protocols 45 including rights of a child in conflict with the law. 46

In 1995, the Amended constitution provided for rights of children and specifically 47 about rights of a child in conflict with the law under Article 34 (6) as follows: 48

"A child offender who is kept in lawful custody or detention shall be kept 49 separately from adult offenders". 50

The Children Act, Cap 59 of 1997 with its amendment in 2016 actualized the $51$ constitutional provisions on the rights of children in conflict with the law under 52 section 89(8) supra and section 91(6) which provides that; "No child shall be 53 remanded in custody in an adult prison". 54

The legislators went ahead to amend section 88 of the parent Act which only 55 provided for the minimum age of criminal responsibility of twelve by inserting more 56 provisions aimed at enhancing the protection of children in conflict with the law as 57 follows. 58

Section 19. Amendment of section 88 of the principal Act. 59

Section 88 of the principal Act is amended by inserting the following new 60 subsections-61

- 2) In determining criminal responsibility or an order for a child offender 62 ,the police, prosecutor or a person presiding over the matter shall consider 63 - 64

the age of the person at the time the offence was allegedly committed;

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$\begin{array}{c}\n\text{65} \\ \text{65}\n\end{array}$ 3) Subject to subsection (2), court shall determine the age based on full 66 assessment of all available information, giving due consideration to official 67 documentation including a birth certificate, School records, health records, 68 statements certifying age from the parent or child or medical evidence.

- 69 4) Specialized protection for children under this Act shall apply to all 70 children below the age of 18 years. - $71$ 5) A person shall be presumed to be a child if he or she claims or appears $72$ to be younger than 18 years old pending a conclusive determination of age $73$ by court." - To buttress the need for protection of juvenile offenders, the lawmakers amended $\cdot$ 74 section 91(5) (a) of the parent Children Act by substituting for "six months" the $75$ words "three months". That is remand in custody shall not exceed 3 months in the 76 case of an offence punishable by death and 45 days for any other offence. $77$ - It is therefore trite law that key stake holders in the criminal juvenile justice 78 system to wit the police, the prosecutor (the state Attorney), and the judicial 79 officer or any other person presiding over the juvenile offenders case must take 80 the issue of age seriously when dealing with a person who says is a child or who 81 appears to be a child. (Section 88(2) of the Children Act supra). 82 - In case the police have ignored or neglected the child offender and indicated he is 83 an adult on the charge sheet, the prosecutor has the statutory obligation under 84 section 88(2) of the children Act as amended to assess the age of the person they 85 are prosecuting. 86 - The presiding Magistrate who sits on the seat of justice has powers under section 87 88(2) of the Children Act to investigate the issue of age of any offender who 88 appears to be young and or claims to be below 18 years. The magistrate has every 89 right to request for documents that can help him or her determine the age. 90 - *Section 88(5) of the Children Act actually makes the presumption that the person* 91 who claims or appears young is a child mandatory pending conclusive evidence 92 of age by court. 93 - The implication of this law is that such a person should not be remanded in an 94 adult prison pending determination of age but should be treated as a child 95 offender by releasing him on court bond. However, if the circumstances of the 96 case demand that he should be remanded, then he should be remanded in a 97 children's facility pending determination of age by court. 98

#### 3. Proceedings at the lower Court.

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Perusal of the lower record of proceedings where the juvenile offender first 100 appeared in court presents a very unfortunate and embarrassing situation. 101

attitude from the court official who was a chief Magistrate expected to be 102 The 103 conversant with the Law and supervisor of the family and children Court was very absurd. PF53, the charge sheet indicated that M. V was 19 years old. 104

- On 17th August 2022, the accused was before court in the absence of the state 105 Attorney. It was only the court clerk and the Chief Magistrate in court. 106 - The charges were read and explained to him and was told not to plead since it was 107 a capital offence. 108 - She did not bother to inform him of his right to apply for bail in the High court. 109 - It was adjourned to 29th of August 2022 and he was remanded till then. 110

On 29/8/2022, he appeared before a grade 2 magistrate in the absence of the state $111$

Attorney again. A one Phiona court clerk appeared for the state. It was adjourned 112

- to 15th September 2022. 113 - I wonder how an accused can appear before court without a prosecutor. 114 Everything was wrong from the beginning moreover in a court presided over by a 115 Chief Magistrate. 116 - On 15th September 2022, the state Attorney whose names are not mentioned 117 appeared. The accused informed court that: 118 - "I am 16 years old and I am in detention for adults yet I am a juvenile. I 119 don't have my birth certificate but my mother has. I am a born of 30/3/ 120 2006." 121 - The learned Ag, Chief Magistrate made a direction that; 122

"Prison authorities are directed to conduct medical examination on the 123 accused, preferably an X-ray examination to determine his true age, further 124 mention on 10/10/2022 and accused remanded until then." 125

- This time the poor suspect was remanded for 25 days by the Ag. Chief Magistrate 126 instead of 14 days. 127 - On 10/10/2022, he appeared and informed the learned Ag Chief Magistrate that 128 - she made an order to have him examined but to date he had not been examined. 129

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He went on to inform court that, "I have my birth certificate from Mengo Hospital where I was born. My mother is in court to confirm the same" 131

The state prayed for copies of the same to verify from Mengo Hospital. 132

133 The learned Chief Magistrate ruled that; "The state is allowed an adjournment to

- verify the document presented by the accused. Accused's mother to get letter 134 - from Mengo Hospital confirming they issued the document. She adjourned it to 135 $3/11/2022$ . 136 - On 3/11/2022, the accused informed her worship the Chief Magistrate that my 137 parents brought document to confirm I am not 18 years. 138 - With all the indifference, the Ag Chief Magistrate ruled that "Court has not 139 received any document to that effect. There was an order for prisons to examine 140 the accused. Await the report. Remanded till 12/12/2022." 141 - From the above excerpts, it's very apparent that the learned Ag Chief Magistrate 142 did not show any semblance of justice to the juvenile offender. His mother was in 143 court with a birth certificate, but was ignored by court. The judicial officer only 144 listened to the state. 145 - She issued instructions to prisons to have the offender examined but she never 146 bothered to inquire from prisons as to why they have not examined him. 147 - The mere fact that she ordered for medical examination by X-ray, shows that she 148 was also in doubt as to whether he was an adult or not which doubt should have 149 been resolved in favor of the accused who kept on informing court that he was 150 - below 18 years. 151 - Instead of applying section 88(5) of the Children Act as amended, where he should 152 have been presumed to be a child and remanded in a children's remand home 153 pending determination of age, she presumed him to be an adult by remanding him 154 - in an adult prison with adults in total breach of the law. 155 - She allowed the State Attorney to investigate the birth certificate, but never asked 156 - her if at all she had sent any police officer to verify at the next mention of the case. 157 - In her confusion, she again asked the mother to bring a letter from Mengo Hospital. 158 - Who was to investigate? The mother she doubted or the prosecution that was to 159 - verify? A birth certificate is one of the documents courts of law can rely on to 160 - determine age of a suspected juvenile or anyone who claims to be a juvenile. 161

There was total bias on the side of court and recklessness on the side of the $\pi$ prosecution. 163

When the registrar of the criminal Division wrote a letter dated 28th September 164 2022 after the accused applied for bail, which was received on 7/10/2022, she 165 refused to send the file and continued mentioning the case until the juvenile 166 offender was committed on 30/3/2023. 167

The juvenile offender was continuously remanded in an adult prison until 21st June 168 2023 when he appeared before this court for trial, spending 10 months and some 169

- days in adult prison mixed with adults. 170 - When the juvenile offender appeared before this court, and his counsel submitted 171 about his age, a birth certificate was discovered on the court file. Court decided to 172 examine him further using rudimentary means of secondary characteristics of 173 adolescents because he looked to be young. 174 - He had not yet developed beards and he was visibly young after spending almost a 175 year in an adult prison. 176 - This court concluded that he must have looked much younger than he looks now 177 which should have not escaped judicial notice of the presiding Ag Chief Magistrate. 178 - At the sitting at the High Court, the prosecutor and Court were all in agreement 179 that he was a child. 180 - It should be noted that court is an expert of experts and the law allows the judicial 181 officer to inquire into the age of a suspect if he appears to be young. 182 - This court does not understand why the trial Ag Chief magistrate completely 183 ignored the provisions of the Children Act, all the available precedents and 184 guidelines on this issue which could have enabled her determine the juvenile's age 185 promptly and save him from this injustice. 186

The moment an offender mentions that he is below 18 years of age, it is the 187 responsibility of court to apply natural wisdom, critically look at the accused's 188 secondary body development characteristics and should court opt to have a 189 second examination to determine age, the accused should be presumed to be a 190 juvenile until the issue of age is resolved. 191

This is a classic example of so many other cases were the age of the offender is 192 enhanced to cause juvenile offenders to be remanded with adults in an adult prison 193 which is in total violation of their constitutional rights and a breach of the 194

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$\mathbf{195}$ provisions of the Children Act Cap 59 and its amendment. It also shows failure on the part of court which is an independent and impartial arbiter in protecting the 196 rights of children. 197

The juvenile offender narrated to court with tears rolling down what adult 198 prisoners do to the juvenile offenders who find themselves in adult prisons and that 199 they are very many. They sodomise many of them because they cannot defend 200 themselves. 201

202 The preamble to the Children Act is that: It is an Act to reform and consolidate the law relating to children: to provide for care, protection, and maintenance of 203 children, to provide for local authority support for children: to establish a family 204 and Children court; to make provision for children charged with offences and for 205 other connected purposes. 206

- Needless to say, the above purpose of the law is to be implemented by all the stake 207 holders involved in the administration of justice regardless of whether the child is 208 the victim or suspect of crime more so the judicial officers who are responsible for 209 ensuring justice and the rule of law. 210 - The law further provides for duration of criminal cases for juvenile offenders under 211 - **Section 99 of The Children Act which provides that:** 212 - 1) "Every case shall be handled expeditiously and without unnecessary delay. 213 - $2) \dots \dots$ 214 - 3) Where, owing to its seriousness, a case is heard by a court superior to the 215 *family and Children court, the maximum period of remand for a child shall* 216 *be six months, after which the child shall be released on bail.* 217 - 4) Where a case to which subsection (3) applies is not completed within 12 218 months after the plea has been taken, the child shall be discharged and 219 shall not be liable to any further proceeding for the same offence". 220 - Enhancing the age of juvenile offender denies him the legal protection and 221 opportunity to be tried as a juvenile. 222

All the above show that a child offender must be treated within the provisions of 223 the law and the suspect should take plea before High court within three months as 224

the case is expected to have been concluded within a maximum of twelve months. 225

- This case shows that M. V's rights were violated right from the time he was arrested 226 by enhancing his age and treating him as an adult, during the remand period and 227 all through the mention of his case, committal proceedings until he appeared - 228

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before the High Court for trial after 10 months where he still visibly appeared $229$ young. 230

It goes without saying that the juvenile suffered untold injustice throughout this 231 process as the police that first arrested him, worked in consonant with the medical 232 officer who examined him if at all he did, to lie about his age. 233

The Ag. Chief Magistrate before whom he appeared and the state attorney all chose 234 to be blind and deaf to his pleas even after his mother labored to avail documentary 235

236 proof of his age as a child.

237 All stake holders in the criminal justice system are expected to support children who are alleged to be in conflict with law and operate within the law pertaining to 238 children. 239

The prisons officers are not obliged to admit juveniles in the adult prison and where 240

the first stake holders have made errors, Prisons authorities have a duty to inform 241

court that the offender is a juvenile. 242

In this case, the trial magistrate made an order directing the prison officers to carry 243 out further examination on the victim and they ignored the same. They 244 continuously remanded and produced the child to court without any assistance. 245 Even at the hearing date before this court, there was still no examination report on 246

file when the request was made 10 months ago. 247

This was a gross failure on the part of the prisons being the custodians of the 248 prisoners and who are under a direct instruction of the law to not remand juveniles 249 in their prisons. 250

This court has no kind words to the police and the clinical officers who fill in these 251 forms. It has been observed not in one case but several that they merely fill in forms 252 especially in regard to suspected juvenile offenders. 253

The office of the Director of Public Prosecutions should endeavor to put its house 254 in order as many juveniles find their way into adult prisons as a result of their 255

negligence and omissions. 256

This is a case where all officers of court at the magistracy failed the accused and 257 breached all the principles and laws pertaining to juvenile justice which are 258 universally applied. 259

They acted in breach of all laws and principals pertaining to juvenile justice while hiding behind the enhanced age thereby occasioning a grave injustice to the young Suspect.

This court in *Uganda Vs AYW HCT-00-CR-JSC-0422-2020*, laid down guidelines that 263 all key stakeholders in juvenile justice should apply in order to reverse the injustice 264 occasioned to juvenile offenders due to the unscrupulous enhancement of their 265 266 age.

267 Considering all the circumstances of this case,, Section 11(2) of the Human Rights 268 (Enforcement) Act. 2019 on Derogation from non-derogable rights and freedoms is applicable. It provides that; 269

- 2.) Whenever, in any criminal proceeding-270 - a) it appears to the judge or magistrate presiding over a trial, 271 - b) it is brought to the attention of the competent court; or 272 - c) The competent court makes a finding that any of the accused person's non 273 derogable rights and freedoms have been infringed upon, the judge or 274 magistrate presiding over the trial shall declare the trial a nullity and acquit 275 the accused person. Emphasis mine. 276 - In view of the above and having been satisfied that M. V was a juvenile at the time 277 he was suspected to have committed the offence, and is still a juvenile and having 278 been in custody for over 10 months in an adult prison, it is my finding that the 279 child was unlawfully kept in custody in an adult prison and his human rights most 280 importantly as a child who should be protected by the state were grossly violated 281 - by all the stakeholders in the administration of justice. 282 - I accordingly declare this trial a nullity and acquit him of any criminal liability in this 283 case under section 11(2) of the Human Rights (Enforcement) Act, 2019. 284 - The state is free to appeal if not satisfied with this ruling. 285 - Dated at Kampala this 3rd Day of July 2023. 286 - 287

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- HON LADY JUSTICE MARGARET MUTONYI. 288 - **CRIMINAL DIVISION.** 289