[2024] UGHCCRD 43

THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA, HOLDEN AT KAMPALA. **CRIMINAL DIVISION.** HCT-00-CR-JSC-0188-2024 UGANDA========================PROSECUTOR

### **VERSUS**

K. R======================JUVENILE OFFENDER

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

### RULING OF COURT.

1). Introduction.

K. R a juvenile, was indicted for murder contrary to sections 188 and 189 of the Penal code Act laws of Uganda where it was alleged that on the 22^nd day of April 2021 at Kirundu Zone, Makindye division in the Kampala District unlawfully caused the death of Nabukeera Rahuma.

On 13^th May 2024, the matter came up for plea taking and the Juvenile offender now an adult was present in court.

### 2). Legal representation.

The learned Senior State Attorney Tabaro Carolyn appeared for the state while Counsel Sebyalo Hassan appeared for the Juvenile.

3). Submission of counsel on the alleged violation of the juvenile offenders constitutional and human rights.

Counsel for **KR** submitted that it is true the matter was for plea taking but before taking plea, he had a preliminary human rights issue to raise under Sec.11 (2) of the Human Rights (Enforcement) Act 2019 which gave effect to Article 50 (4) of the 1995 Constitution of the Republic of Uganda by providing the procedure for enforcing the human Rights listed in Chapter Four of the Constitution.

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He submitted that the accused's rights were violated having been sent on remand to an adult prison when she was a juvenile offender aged 17 years contrary to Section 89(8) of the Children's Act.

As such he prayed that court be pleased to declare the trial a nullity for the said reason.

A copy of the accused's original immunization card was tendered in court as evidence of her birth date and hence juvenile at the time she committed the offence. She was born on 25/08/2003.

The learned state Attorney left it to court after she was satisfied that indeed the accused was a juvenile who has been in an adult prison all that time.

4). The issues for courts resolution.

1). Whether the child's human and constitutional rights were violated?

2). Whether the violation renders her trial a nullity?

## 5). RESOLUTION OF ISSUES.

I will resolve the issues in their chronological order starting with whether the child's human and constitutional rights were violated.

The Universal Declaration of Human Rights, under Article 10 provides for the right to a fair hearing.

It is trite law that any accused person whether adult or juvenile, has a right to a fair hearing.

A fair trial is conducted fairly, justly, with procedural regularity and propriety. The presiding judicial officer must be impartial right from the time of arraignment throughout the trial.

In the case before me, the law provides for three segments of the trial.

The first segment is under Section 66 of the Magistrates Courts Act Cap 16, where the magistrates after reading and explaining the charge sheet remands the accused for lack of jurisdiction. The accused continues to appear for mention of

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the case until the second segment provided for under Section 168 of the MCA that is committal for trial before the High Court and the third segment is provided for under part 1 starting from Section 1 of the Trial on Indictment Act. Cap 23.

The human and constitutional rights of an accused person whether child or adult must be respected from the time of arrest, throughout the hearing and during detention.

The rights of an accused person are clearly stipulated under Article 28 of the **Constitution of The Republic of Uganda as amended in 1995 in part as follows:**

(1)" In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law..."

**Article 34(6)** of the same constitution specifically provides for rights of children who are in conflict with the law as follows:

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

The right to a fair hearing is also categorized as a non derogable right under Article 44 of the Constitution which provides that:

"Notwithstanding anything in this Constitution, there shall be no derogation from enjoyment of the following rights and freedoms –

- a) Freedom from torture and cruel, inhuman or degrading treatment or punishment: - b) Freedom from slavery or servitude; - c) The right to a fair hearing; - d) The right to an order or habeas corpus.

It suffices to note that The Human Rights (Enforcement) Act 2019 was enacted to give effect to Article 50 (4) of the 1995 Constitution of the Republic of Uganda by providing the procedure for enforcing the human Rights and freedoms listed in *Chapter Four of the Constitution.*

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It should also be noted that the fundamental and other human rights and freedoms of individuals and groups as enshrined in chapter four of our Constitution shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.

The judiciary which is the custodian of Justice is charged with upholding and protecting the Constitutional and human rights of the people, derives its mandate from Article 126 of the Constitution which provides in part that:

(1)"Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people.

(2) In adjudicating cases of both a civil and criminal nature, the court shall subject to the law, apply the following principles-

a) Justice shall be done to all irrespective of their social or economic status,

### **b)** Justice shall not be delayed....."

In the case under review, the accused was born on 25/8/2003 as per her immunization card which is one of the means of proving the age of a suspected juvenile offender.

This means that at the time she committed the offence on $22/4/2021$ , she was 17 years 7 months and 27days, just 4 months and 3 days short of 18 years.

She was committed for trial before the High Court vide the indictment dated 30^th August 2021 and committed to Luzira Women prison 22/9/2021.

Even if she had become an adult by the time she was committed for trial before the High Court, and remanded at Luzira Women's prison, she was a child at the time she committed the offence because a child is defined under Section 2 of the Children Act cap 59 as a person below the age of 18 years.

Her trial was supposed to be in accordance with the procedure pertaining to juvenile justice.

The child KR was charged with Murder c/s 188 and 189 of the Penal Code Act.

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According to Article 28(3) (b) of the Constitution, the magistrate was supposed to read and explain to her the nature of the offence.

This explanation involves the section of the law that was breached, the maximum penalty and the particulars of the offence.

It is absurd that the child in this case was informed that the offence was punishable by death according to the charge sheet and indictment when she was finally committed.

The Learned state Attorney should ensure that the charge sheet involving a child offender indicates the offence and section 94 of the children Act which provides for orders that the Court can make.

The law is very clear, High court sits as a family and children court in matters pertaining to capital offences against Juvenile offenders and the maximum penalty is provided under section 94(1) (g) of the Children Act.

Failure to explain the statutory penalty violated the right to the child offender provided under Article 28 (3) (b).

Section 189 of the Penal Code Act prescribes death as the maximum penalty for murder. This court wonders what explanation the judicial officer made to the child at the time of explaining the charge or indictment in accordance with the law.

A juvenile offender should not be alarmed with a death penalty as per charge sheet or indictment which is not the correct position under the law.

Section 122 of the Magistrates Courts Act provides for adjournments and section **122(2)** of MCA among other things specifically provides that:

"Where a hearing is adjourned under this section, the court shall appoint a time and place for the resumption of the proceedings; and in the meantime the court may, subject to section 75(1), suffer the accused person to go at large or may, by warrant, remand him or her in some prison, remand home or other suitable place...,"

This means that at the time of remanding a suspect, the magistrate must be satisfied that he or she is remanding the suspect in a suitable place for that person.

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Adult suspects are remanded in adult prisons while juvenile offenders are remanded in Children's Remand homes.

The function of magistrates who are the very first persons before whom suspects appear in our courts of judicature whether they are charged with minor or capital cases is more than acting as mere arbiters or umpires in a game where they have to ensure that no side, that is the prosecution or defense commits fouls. They must be in direct control and direction of the trial while applying the recognized rules and procedures and ensure that justice is not only done, but is manifestly seen to be done.

Magistrates must strive to ascertain the truth in all cases which come before them.

When it comes to juvenile justice, child offenders have specific laws that apply to them.

In this case, the JO was treated as an adult right from the time she was arrested, charged and committed for trial. She was remanded in an adult prison just because the charge sheet put her age at 19 years and the summary of the case at 18 years.

Because of the injustice occasioned unto her, the case has taken more time than it should have taken had she been treated as a juvenile offender from the beginning.

The law provides for duration of criminal cases for juvenile offenders.

**Section 99 of The Children Act provides that:**

- 1) "Every case shall be handled expeditiously and without unnecessary delay. - $2) \dots \dots$ - 3) 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.

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4) Where a case to which subsection (3) applies is not completed within 12 months after the plea has been taken, the child shall be discharged and shall not be liable to any further proceeding for the same offence".

This court however has noticed the contradiction between the provision in Section 99 (3) and Section 20 of the Children Amendment Act 2016, which amended Section 91 particularly in respect of the remand period of children charged with serious offences triable by the High Court.

If this court is to apply the general principles of statutory interpretation using the principle of intentionalism, the intention of the amendment was to reduce the period on remand in cases of a capital nature to three months and non-capital nature to 45 days.

Section 99(3) of the Children Act is therefore in contradiction with the amendment which this court treats as an oversight of the legislature.

The maximum statutory period on remand for juveniles charged with capital offences is therefore three months as that was the intention of the amendment.

Section 99 further provides for duration of cases involving children.

Section 99(4) of the Children Act provides for discharge of a child twelve months after plea taking if the trial is not completed.

This section was intended to put into effect the right to a fair hearing under Article 28 of the constitution which right includes a speedy trial.

It is my view that the intention of the legislature cannot be interpreted to mean. that cases before plea taking can take longer than twelve months. This section takes care of capital cases against juveniles that take more than twelve months before trial as well.

It suffices to note that all stake holders in the criminal justice system are expected to uphold and protect the human and constitutional rights of children in conflict with the law as stipulated under Article 20(2) of the Constitution supra.

The office of the DPP and the court must apply the laws pertaining to children as they are, without perverting justice because the procedure is very clear. $\mu$ $\omega$

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In the instant case, the girl child was treated like an adult.

She has been on remand for more than three years which is far and above the maximum sentence even if the offence was proved against her.

In view of all the above, it is very clear that the juvenile offender, KR's right to a fair hearing which right includes a right not to be remanded in an adult prison with adults was violated.

She was also not released on bail after the mandatory period on remand for juveniles charged with capital offences which is three months.

And further denied a right to a speedy trial making her remain on remand beyond the maximum sentence if the offence was to be proved against her.

The first issue is therefore resolved in the positive. Her constitutional and human rights as a juvenile offender were violated.

2. Whether the violation renders his trial a nullity.

Section 2 of the Human Rights (Enforcement) Act, 2019 defines non-derogable rights and freedoms to mean rights and freedoms listed in Article 44 of the **Constitution.**

These rights include the right to a fair hearing under Article 44(c).

A fair hearing to a child offender who is kept in lawful custody or detention includes the right to be kept separately from adult offenders as provided under Article 34(6) of the Constitution and a speedy hearing as stipulated under *sections 91 as amended under section 20 of the Children Amendment Act, 2016* which amended section 91(5) (a) of the Principal Act by substituting for "six months" the words three months and in subsection (5)(b) by substituting for "three months" the words "forty five days" and section 99 of the Children Act.

These sections of the Children Act put into effect Article 28 of the Constitution that provides for a right to a fair hearing in as far as juvenile criminal justice is concerned.

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K. R was remanded with adults and matured from the adult prison and much as she was not yet tried, she ought to have been released on bail after three months pending her trial. She spent more than three years on remand.

Section 11 of the Human Rights (Enforcement) Act, 2019 provides for derogation from non–derogable rights and freedoms.

Section 11(2) provides that;

"Whenever, in any criminal proceedings –

- 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".

The violation of the child offender's non derogable to a fair hearing as enshrined under Article 44(c) is so apparent that no competent court can purport to proceed with her trial. Such a trial would amount to perpetuation of a miscarriage of justice and promote procedural irregularity in criminal juvenile justice. This High Court would also be relegating its general supervisory powers over magistrate's court as it would be condoning gross judicial negligence by judicial officers who are the first to interface with suspects in our courts. Once the suspects appears to be young, the magistrate is duty bound to inquire into the age of the suspect. It is not known whether the mother brought the issue of age of the juvenile offender before the magistrate because the lower court record has been irretrievably lost.

In view of the above violations of her non-derogable right to a fair hearing, her trial is hereby declared a nullity as provided under Section 11(2) of the Human Rights (Enforcement) Act, 2019.

She is acquitted accordingly. The second issue is resolved in the affirmative.

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Dated at Kampala this 5th^th day of June 2024

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Hon Lady Justice Margaret Mutonyi, JHC.

**CRIMINAL DIVISION.**