Uganda v NC (HCT-00-CR-JSC 87 of 2003) [2023] UGHCCRD 104 (26 June 2023)

### THE REPUBLIC OF UGANDA,

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

### AT THE NAGURU REMAND HOME.

## HCT-00-CR-JSC-0087-2023

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

#### **VERSUS**

N. C (Juvenile Offender) ==================================ACCUSED. BEFORE HON. LADY JUSTICE MARGARET MUTONYI, JHC.

#### **RULING**

## 1. Introduction

NC a Juvenile Offender was indicted for Aggravated Robbery C/S 285 of the Penal Code Act, laws of Uganda where it was alleged that on 27<sup>th</sup> July 2022 at Munaku, Rubaga Division in the Kampala District, he robbed Nattabi Shanitah of her money Ugx. 5.000.000/= and an Itel button mobile phone valued at UGX. 60.000/= and at the time of the robbery used a dangerous weapon to wit a paver.

2. When the juvenile offender was arraigned before this court for plea taking, he pleaded guilty to the offence against him and the facts thereunder. He apologized to the court and the complainant who was present during the trial. He also informed court that he was a good child but had been misled by bad groups especially a one Sahad who was the gang leader. He promised to never get involved in crime again.

3. During the mitigation of his sentence, his advocate counsel Winfred Adukule brought it to the attention of this court that; whereas Part B of PF24 that was admitted in evidence as indicated that the offender herein was a juvenile after medical examination, his age having been put at 17 years and with 31 sets of teeth, the juvenile offender was erroneously remanded in an adult prison where he spent 6 months before eventually being transferred to the Naguru Remand Home. She prayed to this court to be lenient to the juvenile offender given the trauma he had undergone while in adult prison and suggested that court grants him a none custodial sentence.


## 4. Decision of court.

The law on handling children in conflict with the law pertaining to detention while in police custody and pre-trial remand is well stipulated under Section 89 (8) and 91 (5) (a) and (6) of the Children Act and provides as follows:

S. 89 (8), "No child shall be detained with an adult person.

S. 91 (5) (a), Remand in custody shall not exceed three months in the case of an offence punishable by death.

(6) No child shall be remanded in custody in an adult prison."

There is a tendency on the rise where police officers arrest children who are visibly younger and inflate their age just so they can be remanded in adult prisons.

In this case for instance given the fact the first information on the Police Form is filled by the Investigating officer who then delivers it to the medical personnel, his age was first put at 20 years. However, after examination by the medical Clinical Officer at Pearl Medical Clinic, he advised that the offender was actually a juvenile by putting his age at 17 years. The manner the form was filled with 31 teeth was suspicious and indeed when court counted his teeth, the suspicion was found to be iustified.

The complainant who was present in court insisted that the offender was an adult. When court decided to do a rudimentary on spot examination of his teeth and beards it was discovered that he had 30 teeth and had no beards. The recording of 31 set of teeth was false

He was thus confirmed to be a child below 18 years of age.

It is very unfortunate that the state agencies that should be upholding juvenile justice and constitutional rights of children are the same ones violating the children's rights.

In this case for instance, despite having a medical report from the medical clinical officer, which also included false report on his dental formula, the investigating officer opted to continue with his misinformation on the age by putting 20 years on the charge sheet.

The court of first instance also ought to be cautious with such cases more so where the offender is on the borderline or out rightly looks young. The magistrates should be proactive and employ some of these rudimentary methods to establish the truth before children are exposed to injustices that could harm them physically and or

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emotionally for a life time given that the main aim of juvenile justice for children in conflict with the law is reformation and restoration.

The offender who appears to be young should plead to his age as well which would help the court make a decision whether to remand in a juvenile remand home or adult prison from an informed perspective.

I have no doubt in my mind that this child was unfairly and unlawfully detained in an adult prison for a whole 6 months. This has undoubtedly exposed him to a horrendous lifestyle and untold trauma as the situation in our remand prisons is incomprehensible. If It is not the best for even the adults, how much worse can it be for a child.

Consequently, it is my finding that the Juvenile Offender suffered unjustifiable human rights violations during the handling of his case right from his arrest, remand detention, all through till this trial. He was a child who ordinarily should have been protected and his rights safeguarded by those who turned out to grossly violate them.

In my view Section 11(2) (C) of the Human Rights (Enforcement) Act, 2019 on Derogation from non-derogable rights and freedoms which is very clear, unambiguous and structured in mandatory terms is applicable in this case. It provides that:

- 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. Emphasis mine."

In view of the above provision of the law and in a bid to condemn in the strongest terms the gross abuse of children's rights by the stake holders in criminal justice system at the level of investigations, reading and explanation of the charges and remand, which violations have become very rampant, I find that the juvenile offender's rights were grossly violated warranting reversal of the earlier finding that the offence of aggravated robbery was proved against the juvenile offender. In the result I declare this trial a nullity because this court cannot condone a violation of the children's constitutional rights.

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The iuvenile offender is discharged of any criminal liability.

It is directed that he be handed over to his parents unless held over other lawful s charges

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Dated at Kampala this 26<sup>th</sup> Day of June 2023.

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HON LADY JUSTICE MARGARET MUTONYI.

**CRIMINAL DIVISION.**