Uganda v W. B (HCT-00-CR-JSC 523 of 2019) [2023] UGHCCRD 108 (22 March 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

# HCT-00-CR-JSC-0523-2019

#### **PROSECUTOR** UGANDA:::::::::::::::::::::::::::::::::::

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### **VERSUS**

JUVENILE OFFENDER **W. B (A JUVENILE) ....................................**

### BEFORE HON LADY JUSTICE MARGARET MUTONYI

### **DISPOSITION ORDER**

W. B herein after referred to as the Juvenile Offender was indicted with the offence of Aggravated Defilement C/s 129 (3) and (4) (a) of the Penal Code Act. It is alleged that on the 10th day of April 2021 at Nansana (Lubigi) West 11 in the Wakiso District performed an unlawful sexual act NM (the victim), a girl aged 12 years.

At plea taking, the juvenile offender out rightly pleaded guilty to the indictment. And the offence of Aggravated Defilement was accordingly proved as against him.

Whereas the offence of Aggravated Defilement as preferred was successfully proven against the JO on his own admission. Suffices to note that this court was $20$ prompted to expeditiously hear this matter by virtue of a letter by the JOs mother one Nambooze Teddy dated 27th February 2023 wherein she brought it to the attention of this court that the J. O in this case was a juvenile at the time of the commission of this offence and was indeed still a juvenile although he had been continuously detained in an adult facility at Kigo Prison. 25

To prove this fact, she availed this court with a Birth Notification Record from NIRA indicating that the J. O, W. B was born on 1st August 2006 to Kibalama Deogratius Waswa and Nambooze Teddy in Bwaise III Parish, Kawempe Division. She further availed the JOs school report for Larenah Nursery and Primary School indicating

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that the he was in Primary Six and had been promoted to Primary Seven although on probation.

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Article 34 (6) of the 1995 Constitution, on Children's rights provides that; -

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

This provision of the constitution has been actualized in Section 89 (8) and 91 (6)

#### of the Children Act CAP 59 $10$

In addition, section 99 (3) of the same provides that;

"Where, owing to its seriousness, a case is heard by a court superior to the family and children court, the maximum period of remand for a child shall be six months, after which the child shall be released on bail."

To emphasize the seriousness and sensitivity of matters pertaining to children in 15 conflict with the law, section 99 (4) thereto provides for 12 months as the period within which a trial involving a juvenile should be completed once plea has been taken, failure of which the child is entitled to a discharge and the case is accordingly dismissed.

This court, the defence and prosecution all took cognizance of the fact that the JO was still young and below 18 years at the time of plea taking. The Court even went ahead to physically examine the JO and it was established that he had no beard yet and his teeth were only 29 in total.

In HCT-00-CR-SC-0209-2020 UGANDA VS K. R (A JUVENILE); this court observed $25$ $that; -$

> "Counting of teeth and examining the suspect if he has beards, or not, the voice, is simple but very useful in ascertaining the age of a suspect who appears young or who is alleging to be young whereas he be an adult. It does not occasion any injustice where the judicial officer and prisons officer choose to be proactive."

When the JO was questioned by this court, he stated that he was born on 1st August 2006 confirming what is stated in the Birth Notification Form and that he was indeed a primary six pupil at Larenah Nursery and Primary School. He informed this court that he felt very bad about his actions and he was never going to repeat them. When asked about his accomplices still at large, he mentioned all their names and informed court that they were his friends as they were all going to the same school together. He also told court that he was living with his grandmother at the time of arrest.

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The charge sheet indicates that the JO was arrested and detained on $10^{\rm th}$ April 10 2021, on 19th April 2021, he appeared before the Magistrates Court of Wakiso at Nansana where from he was remanded to prison till 12th May 2021 and several other dates continuously until 1st October 2021 when he was committed to High Court for Trial. This was not disputed by the prosecution.

It therefore goes without saying that the JO in this case has undergone untold suffering and experienced a gross violation of his constitutional rights even as a child offender. Whereas the law entitles child offenders to release on bail after 6 months on remand even where they are detained in the rightful children facilities.

- the JO herein has been on pre-trial remand unheard since April 2021. 20 Suffices to note that in circumstances where the most grave offences are preferred and proven against juvenile offenders, the maximum sentence as provided for under section 94 (1) (g) of The Children Act is three years - It is also very unfortunate that whereas parents are ordinarily expected to be the 25 first point of contact for their children and the protectors of their children's rights, most parents today such as the ones of the JO herein abandon their children once they find them in conflict with the law. This should not be the case.

For instance, from interrogating the JOs mother herein, court established that she had separated with her husband and consequently left the children with their 30 grandmother. She told court that she only got to know that her son was arrested 9 months ago because she was in the village and had no phone to communicate. I find this to be a mere excuse and obviously untrue.

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Whereas the JO out rightly admitted to the offence and it was accordingly proved against him, it is also true that he his rights have been grossly violated right from the time of his arrest till his plight was recently brought to the attention of this court. This court also found him to be very repentant, remorseful and without a doubt a reformed child who should be rehabilitated and restored to life. Since he has already been on remand for far too long that to in an adult facility, I consequently sentence him to 2 years in prison period of remand inclusive which period he has already served.

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He should consequently be released with immediate effect unless held over other lawful charges.

Dated at Kampala this 22nd day of March 2023

HON. LADY JUSTICE MARGARET MUTONYI, JHC. **CRIMINAL DIVISION.**

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