Uganda v Mucunguzi & Another (Criminal Session 304 of 2023) [2024] UGHCCRD 80 (24 March 2024)

## **THE REPUBLIC OF UGANDA.**

# **IN THE HGH COURT OF UGANDA HOLDEN AT KAMPALA.**

## **HCT-00-CR-SC-0304-2023**

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

### 5 **VERSUS**

#### **A1. MUCUNGUZI LAWRENCE**

**A2. NALUBEGA RITAH======================================ACCUSED.**

### **BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.**

### **JUDGMENT**

# **1. INTRODUCTION.**

Mucunguzi Lawrence and Nalubega Ritah hereinafter referred to as A1 and A2 were 15 indicted for aggravated trafficking in persons contrary to Sections (1), (3)(a) and (4) (a) of the Prevention of Trafficking in Persons Act 2009, laws of Uganda. Section 1 of the Act basically defines a few terms under the Act like exploitation, sexual exploitation, a child, trafficking in persons and others.

They were charged with two but separate counts.

- 20 It was alleged in the first count that Mucunguzi Lawrence, A1 between the months of March and April 2022, in the areas of Kampala, recruited, and or transported a girl child hereinafter referred to as AA, by means of deception and or abduction or abuse of power or position of vulnerability for the purpose of child labour or other forms of sexual exploitation. - 25 The second count was in respect of A2 Nalubega Rita, who was alleged to have recruited, or received and or harboured the child AA, by means of deception, abuse of power or position of vulnerability for the purpose of forced labour, child labour or prostitution or any other forms of exploitation.

When the accused persons were arraigned before this court, they pleaded not guilty

30 to the charges there by putting all the essential ingredients of the offence of aggravated trafficking in persons in issue.

The learned State Attorney, Kyomugisha Barbara appeared for the prosecution while learned Counsel Shiella Kihumulo appeared for the accused persons on state brief.

# **2. Legal Principles:**

35 In criminal law, an accused person is **presumed to be innocent until proven guilty or until he or she pleads guilty**, which presumption is a constitutional right under **Article 28 (3) (a) of the 1995 Constitution of the Republic of Uganda** as amended.

As such **the burden of proof squarely rests on the prosecution to prove the guilt of the accused person.** Refer to the case of **WOOLMINGTON VS DPP [1935] AC. 462**

40 The standard of proof is very high. All the essential ingredients of the offence **must be proved beyond reasonable doubt.** See the case of **MILLER VERSUS MINISTER FOR PENSIONS [1947] 2 ALLER 372.**

The essential ingredients of the offence of aggravated trafficking in persons that the prosecution has to prove are the following:

- 45 **1. The Act, which includes recruiting, or transporting, or transferring, or harbouring or receiving the victim. The accused may do all the above or one of them or combination of any of them.** - **2. The Means which includes threat or use of force, or coercion, abduction, fraud, deception, abuse of power, abuse of position of vulnerability, giving or** - 50 **receiving payments to get the consent of the victim or the person having control of the victim.** - **3. The Purpose, which includes but not limited to sexual exploitation, forced marriage, forced labour, harmful child labour, slavery and many others which are not in the facts of this case.** - 55 **4. That the victim was a child.** - **5. Participation of the accused in the commission of any of the acts, or means, with the purpose of trsafficking complained of.**

**Consent of the victim to any of the above acts, means, or purposes is irrelevant. Hence, the accused can not plead it as a defence.**

60 **Both the prosecution and the defence did not make any submissions.**

**3. Issues for courts' determination.**

**The only issue for the court to resolve is whether the accused persons committed the offence of aggravated trafficking in persons.**

# **4. Resolution of issues.**

The prosecution called 3 witnesses while the accused persons gave their evidence on oath but called no witnesses.

**PW1 AA the victim** stated that she was 16 years old. The relevant part of her evidence 70 was that at the time of the incident under review in 2022, she was living with PW2 Ssalongo Celestine Turyamusiima who was married to her auntie. She was working in his restaurant. She knew the accused persons as Ritah her boss as she was taking care of her child and A1 as Lawrence and the one who connected her to A2.

According to her A1 was a husband to A2.

75 She informed the court further that she got to know A1 because he was their customer who used to eat at the restaurant.

That one day he told her that he was looking for a babysitter for his child and that he would pay shs. 70,000/=. She told him that she could manage that job.

He then picked her at around 4 am from PW2's place and took her to A2's place for

80 the job.

She started working for A2 looking after her baby while A1 left claiming he was going abroad. A2 would leave her with the baby as she worked in Kampala at a place not known by the victim.

That after working for one week, A2 started coming with a man called Bosco who 85 would have sexual intercourse with the victim against her will and thereafter Bosco would give A2 money.

These forceful encounters continued throughout her stay until A2 offered to take her back to her relative. When she complained of pain in her private parts, A2 told her to boil water with onions and wash her private parts.

90 Her evidence was not contradicted in cross-examination save that she had two police statements which were made before and after medical examination. She also admitted she had a boyfriend before and had had intimate sex before Bosco defiled her.

In cross-examination, she maintained Bosco was not her boyfriend but she had one 95 called Living and that the misunderstanding between her and A2 started when A2 suggested that she goes to look after the child from the village. She denied ever beating the child.

She tested positive for HIV when she was taken for a medical examination.

At the time of testifying, she was 16 years old and therefore a child.

# 100 Remember she was just a child and her earlier sexual intercourse is irrelevant.

**PW2 Ssalongo Celestino Turyamusiima's** evidence was to the effect that he was staying with the victim AA at his place at Kiwatule Balintuma Zone where he was having a hotel business. He knew A1 as his customer at the hotel.

That the victim AA, a daughter to his sister-in-law, was given to him by her 105 grandmother so that she would stay with him and learn hairdressing.

Before she could start learning hairdressing, she used to work at his restaurant.

That one day, he woke up in the morning and the victim was not there. He was informed by the children she was sleeping with in the same room, that a man came for her and the victim told the child a one Kato to close the door.

110 He reported the matter to police and after some time when A2 got challenges with the child, she called him. He told her to bring the victim and she was arrested.

A1 Lawrence came to see Ritah A2 and he was also arrested.

**PW3 Kizito Eric** a medical Clinical Officer of 5 years experience working with Praise Medical Clinic Bukoto examined the victim in a case of disappearance of a child.

115 She was found to be 15 years old, with an old raptured hymen, severe rashes at the labia, smelly yellowish discharge, genital ulcers, with a painful vagina on examination. She had signs of having sexually transmitted diseases.

She also tested positive for HIV with a negative pregnancy test.

According to his examination, she was defiled not less than three days ago and was 120 sexually active at 15 years old.

He also examined A1 Mucuguzi Lawrence on PF24A and found him to be a male adult of sound mind.

He equally examined A2 Nalubega Rita who was a female adult with sound mind and HIV positive.

125 The Police Forms were admitted in evidence and marked as PE1 FOR PF3A, PE2 FOR PF24A FOR A1 AND PE3 FOR PF24A FOR NALUBEGA RITAH.

Basically, that is the prosecution case.

On the other hand, both accused persons made their statements in defence under oath.

130 **DW1 MUCUNGUZI LAWRENCE** informed court he was a 28 year old man, working as a barber at a saloon at Kiwatule.

He informed court inter alia that a friend of his called BRITON TUMWESIGYE called and told him that he needed a house maid. He promised that in case he gets one he would get in touch.

135 That he was a customer at the hotel where the victim used to work. That she approached him that she needed a job of a house maid and pleaded with him to get her the job as the people she was working for were not paying her and as such she did not even have money for sanitary pads.

That as a parent and one who has sisters, he got the contact of Briton, and gave it to 140 the girl. He did not know what they discussed.

That thereafter he received a call from A2 Nalubega Ritah informing him that they have agreed with the victim and he should help with taking the girl to her place.

That he picked his boss's motorcycle and picked the victim and took her to A2's place.

He did not know what transpired thereafter. That he picked the girl between 5 am to 145 6 am and reached Kabowa at A2's place when it was already 6 am.

That the victim never told him that she was staying with the uncle but only working there for 30,000 per month. That he never forced AA to work as a maid at Nalubega's place and that he did not know Nalubega before but Nalubega told him she had agreed with the victim

150 In cross-examination, he admitted he had known PW2 and did not tell him he was taking away his worker because he didn't want to have a misunderstanding with him.

And he confirmed picking her and taking her to A2's place and that he knew she was going to work as a maid.

**DW2 NALUBEGA RITA** 30 years old, informed court that in the months of March and 155 April 2022, she needed a maid to take care of her children, especially the baby who was 8 months old. That people around referred her to one Briton who also referred her to A1 and she talked to him that evening around 8:00 pm. That A1 told her that he gets maids from Rukungiri and she told him to get her someone who is an adult between 19 and 20 years who is able to look after children.

160 That he asked for 50,000/= and that in case he got the person, he would get back to her.

That after two days A1 called her that he has got a girl from Rukungiri and would be arriving in the morning. On the 3rd day, A1 brought the girl to her around 6:30 am.

She asked him why they were so early and he said they travelled by bus in the night.

165 She received the girl and asked if he had any documents about her. That A1 insisted the girl is an adult but failed to produce her national identity card yet he claimed he had it.

That he assured her she would work because she was working in a hotel before but when she failed she went back to the village.

170 A1 left. She stayed at home for two days teaching her what to do. That when she resumed work, the child got an infection where he vomited and had diarrhoea. The doctor told her the infection was caused by using unclean things. She warned the girl.

The child again had a swollen arm but the victim claimed not to know the cause.

175 She called A1 who spoke to her on the phone and told her she had promised to change.

That she continued living with the girl until the third week.

That one day she found her with a big phone seated where they play Ludo from and asked her where she got the phone from. She told her it was for her friend Bosco the

180 caretaker of the rentals they were renting. She knew Bosco before and I told her to return the phone.

That she approached Bosco and asked about the phone and he admitted to having a conversation with the girl and he discovered she was from the same village.

That they continued that week and towards the end, she found when the baby was 185 crying on the bed and the girl was not around. That her neighbours told her the girl does not stay at home. The baby also had scratches on his body. She realized that the girl would not keep the baby. She called A1 but his phone was off.

She later returned claiming she had gone to buy chapatti and denied beating the child.

That she decided to take her child to her mother's place, and requested her neighbour 190 Esther to stay with the girl. She spent 3 days at her mother's place.

Upon her return, she wanted to return the girl to Lawrence but he was not available.

She suggested to take her to a bus to go to Rukungiri but she claimed she had got a job at a hotel. She did not want to go to Rukungiri.

She later gave her her uncle's number PW2. She called him and they agreed to meet 195 with the girl. She took her to him and she was arrested on arrival.

She claimed she had a bag with money she was to pay her but the police took her money. So she never paid her any money.

Lawrence was arrested when he came to explain how he got her the girl.

She denied getting money from Bosco for him to play sex with the victim.

200 Basically, that was the defence case.

## **Evaluation of evidence.**

From the evidence above, both the prosecution and defence agree that the victim AA was recruited and transported by A1 who took her to A2 and harboured her for about three weeks. Meanwhile, PW2 had reported to police the case of the disappearance 205 of a child.

A1 knew very well that the girl was living and working for PW2 at a restaurant but decided to get her very early in the mourning without the knowledge of her guardian or employers if at all he did not know that PW2 was her guardian.

The fact that he picked her up very early before dawn shows his guilty mind. He knew 210 that what he was doing was wrong. Even if the girl accepted to move out of PW2's home very early before daybreak, it should be noted that in cases of trafficking in persons, consent of the victim or failure to run away is immaterial.

A2 testified that she paid A1 Ug shillings 50,000 /= Fifty thousand Uganda shillings to bring for her a maid and A1 brought the victim, she received her and stayed with her 215 until she became cruel to her baby. She therefore participated in transporting the

victim, received her and harboured her.

The defence of A1 that he did not want to create a misunderstanding between him and PW2 is not acceptable. His conduct was unlawful and he knew exactly that it was wrong for him to recruit the victim and take her way. That is why he picked her when

220 everyone was still asleep. His action caused untold psychological torture to the family of PW2 and the victim's family.

This court is aware that young girls of above 16 years look for work as house helps but their employment must be with the consent of their parents or guardians.

They should know the place and persons they are going to work for so that they are 225 held accountable for the well beig of the child. The victim in this case was not even 16 years at the time she was recruited.

**The ingredient of the act** comprised of recruiting, transporting, and transferring her from PW2's place and harbouring her at A2's place was therefore proved beyond reasonable doubt against both accused persons.

## 230 **This brings me to the ingredient of the means.**

**The Means must be through threats or use of force, or coercion, abduction, fraud, deception, abuse of power, abuse of position of vulnerability, giving or receiving payments to get the consent of the victim or the person having control of the victim.** In the case before the court, the victim was informed by A1 that he wanted a baby

- 235 seater and offered better pay after learning that she was paid only 30,000/= per month. The victim informed the court that he offered a monthly pay of 70,000/= (seventy thousand) Uganda shillings. A1 even got 50,000/= from A2 claiming he was getting her a maid from Rukungiri whereas not. He had already identified the victim from the restaurant of PW2 where he was a regular customer which was just at - 240 Kiwatule here in Kampala.

The victim who had known him as their customer trusted him only to be taken to the home of A2. A1 later disappeared claiming he was travelling abroad.

A2's conduct can only be described as deceptive. He was not the one employing the victim, so his offer of 70,000/= was just to take advantage of a young child of 15, years 245 in order for her to accept to be trafficked from her uncle's home.

In regard to A2, the victim claimed she stayed well with A2 for the first week only to be subjected to sexual abuse thereafter.

She also wanted to take her and the baby to the village to stay with A2's mother which was not agreeable to the victim which led to a fallout.

250 A2's defence that he did not know A1 and vice versa is not believed by this court.

Their subsequent conduct shows that they knew each other much as it is not known how close they were.

For A2 to receive the victim as a nanny to her baby only to subject her to sexual abuse by a man known to her amounts to deception on her part.

255 The defence raised by A2 that the victim mistreated her baby, much as it could be true, was triggered by her own mistreatment of the victim. Victims of trafficking can behave in a hostile manner that can compel their traffickers to release them.

This court has not also believed that the victim just got involved with a one Bosco. But even if she did, A2 owed her a duty of care as a child under her custody. At the time

260 she came to testify, she was 16 years old and looked young. She definitely looked younger at the time she was trafficked. No responsible person would have allowed her to sleep around with Bosco without reporting Bosco.

This court believes that the defence of the victim willingly sleeping around with Bosco is false.

265 My finding is that the ingredient of deception as the means of procuring her trafficking has been proved beyond reasonable doubt.

The next ingredient to be proved is purpose.

## **Purpose includes but is not limited to sexual exploitation, forced marriage, forced labour, harmful child labour, slavery and many others which are not within the facts**

270 **of this case**

The evidence before this court is to the effect that A1 demanded for 50,000/=from A2 to get her a babysitter from Rukungiri. He gained financially from A2 as the victim was just here in Kiwatule. AA the victim informed the court that a one Bosco would have sexual intercourse with her and after would pay A2 some money. The amount

275 was not established though.

PW3 Kizito Eric, a medical clinical officer who examined the victim on PF3A which was admitted in evidence as PE1 informed the court that the victim was a 15-year-old with an old raptured hymen. That is not very important in this case because the victim admitted she had a boyfriend and was sexually active, which to me was another case

280 of defilement that ought to have been investigated.

However in respect of this case, medical evidence revealed that the victim had sexually transmitted disease, had evidence of having been defiled 3 days before examination. In her evidence, she testified that before she was taken back to the uncle, A2 compelled her to have sex with Bosco.

285 When A2 took her child to the village, the victim was left alone with Bosco who continued with the sexual abuse.

A2 claimed she left the victim with a friend but she never called that friend as her witness. With the fresh evidence of sexual assault on the victim, this court believes that the victim was trafficked for sexual exploitation.

290 At the time she was taken back, she was not paid any money.

Making her work without payment amounts to labour exploitation.

I know wages are usually paid after a month but in case of termination before the month ends, the worker should be paid for the time she offered her services.

This was not the case here.

295 Section 32 of the Employment Act allows employment of children above 14 years. If A2 employed her, but got disappointed along the way, then she should have paid her the money for the three weeks she worked.

Her defence that she had gone with the money but the police took it has not been believed by this court.

300 The ingredient of trafficking for sexual exploitation and labour exploitation has been proved beyond reasonable doubt.

The fact that the victim was below 18 years is not contentious. A2 even doubted whether she was old and demanded for documents from A1 to show she was an adult. That he promised to avail them but he did not. This confirms that they both knew she

305 was a child.

Being a child aggravates the offence of trafficking a person.

On the issue of participation, both the prosecution and defence evidence properly identify the accused as persons who trafficked the victim.

A1 got her from PW2's place and transferred her to A2's place who harboured her 310 and subjected her to sexual abuse and used her to keep her baby for three weeks without pay.

Their involvement is not contentious.

The lady and gentleman assessor advised this court to find the two accused persons guilty of the offence of trafficking in persons act as charged.

315 I do not have any reasons to disagree with them having found that all the three ingredients of the offence were proved beyond reasonable doubt.

In the result, I find both accused persons guilty of the offence of aggravated trafficking in persons contrary to Sections 1, 3 (a) and (4) (a) of the Prevention of Trafficking in Persons Act 2009, laws of Uganda and convict them accordingly.

## **Dated at Kampala this 24th** 320 **day of March 2024.**

**MARGARET MUTONYI, JHC CRIMINAL DIVISION.**