[2023] UGHCICD 16

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (INTERNATIONAL CRIMES DIVISION) HCT-00-CD-SC-0021-2022 UGANDA ...................................................................................... PROSECUTOR**

## **VERSUS**

**NAKAZZI MIRIAT .............................................................................. ACCUSED**

## **BEFORE: HON. JUSTICE ALICE KOMUHANGI KHAUKHA**

## **RULING FOR CONFIRMATION OF CHARGES**

#### **Introduction**

This ruling is in respect of a pre-trial for confirmation of charges whose hearing was conducted in the above case file (HCT-00-CD-SC-0021-2022) between 21st February and 6th March 2023.

The accused was indicted on one count namely: Aggravated Trafficking in children contrary to section 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009.

During the pre-trial, the charges were read and explained to the accused in Luganda in open court but the accused was not allowed to plead to them because she could only do so at her trial before the trial panel should the charges be confirmed in this pre-trial.

#### **Representation**

The prosecution was represented by Ms. Marion Benbella a State Attorney from the Office of the Director of Public Prosecutions while the accused was represented by Mrs. Sylvia Namawejje Ebitu of Asiimwe, Namawejje & Co. Advocates on state brief.

#### **Facts as disclosed by the Prosecution**

It is the Prosecution's allegation that in February 2020, Ndagire Marion (hereinafter referred to as **the victim**) aged seventeen (17) years at the time secured a job of domestic work at the home of Nakazzi Miriat (hereinafter referred to as **the accused**) in Kibuye, Kampala.

That the accused had a chain of businesses including a shop, restaurant and massage parlour located in the same area. That the victim started her work as a domestic worker at home but the accused later introduced her to the rest of the businesses. However, when government imposed the COVID 19 lockdown, the accused closed her shop and restaurant but the massage parlour remained open and the accused moved the victim to the massage parlour. While at the massage parlour, the victim was given strict instructions to always lock the rooms whenever working on clients. She was meant to perform both partial and full body massage irrespective of the client's gender.

It was the victim's allegation that during one of the full body massage sessions, a male client demanded for sex. That the victim refused but the said client forcefully had sex with her. That on 11th April 2020, the victim had a misunderstanding with the accused's son and she was chased away from home. It is then that the victim reported to police and disclosed the sexual assault she had experienced at the accused's massage parlour. The victim was medically examined, and she was found with a completely raptured hymen. The accused was then arrested, charged with aggravated trafficking and committed to the High Court for trial.

### **Disclosure/List of exhibits presented by the Prosecution**

The Prosecution made their disclosure and presented the following documentary exhibits that were identified and duly marked by court as required under the Judicature (High Court) (International Crimes Division) Rules, 2016 and the High Court (International Crimes Division) Practice Directions, 2011:

- 1. The statement of Ndagire Marion (the victim) dated 12th April 2020 was marked as PEX1 (ID); - 2. The additional statement of Ndagire Marion (the victim) dated 13th April 2020 was marked as PEX2 (ID); - 3. The statement of Aisha Nansubuga Ganafa was marked as PEX3 (ID); - 4. The statement of Najjuko Winnie was marked as PEX4 (ID); - 5. The statement of Nabutono Eseza (police officer) was marked as PEX5 (ID); - 6. The statement of No. 57926 D/C Kwikiriza Precious (police officer) was marked as PEX6 (ID); - 7. The statement of Nakazzi Miriat (the accused) was marked as PEX7 (ID); - 8. The addition statement of Nakazzi Miriat was marked as PEX8 (ID); - 9. Police Form 3A, a medical report of Ndagire Marion (the victim) dated 13th April 2020 prepared by Dr. Bwire Faizo of Intergrated Medical Centre was marked as PEX9 (ID); - 10. The laboratory report from Intergrated Medical Centre dated 13th April 2020 was marked as PEX10 (ID); and - 11. The sketch plan of the Crime Scene was marked as PEX11 (ID).

## **Jurisdiction**

Clause 6 (1) of the High Court (International Crimes Division) Practice Directions, 2011 provides for the jurisdiction of the International Crimes Division of the High Court. It stipulates that:

*"Without prejudice to Article 139 of the Constitution, the Division shall try any offence relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime as may be provided for under the Penal Code Act, Cap. 120, the Geneva Conventions Act, Cap. 363, the International Criminal Court Act, No. II of 2010 or under any other penal enactment."* **[**Emphasis Mine**]**

The charge against the accused person was brought under sections 3(1) (a) and 5(a) of the Prevention of Trafficking in Persons Act, 2009. The said Act as per its long title was enacted to prohibit trafficking of persons, create offences, prosecution and punishment of offenders, prevent the vice of trafficking in persons, protect victims of trafficking in persons and other related matters.

From the foregoing, it is clear that the charge brought against the accused person under the Prevention of Trafficking in Persons Act, 2009 is an offence triable by the International Crimes Division of the High Court as stipulated under Clause 6 (1) of the High Court (International Crimes Division) Practice Directions, 2011. Therefore, this court has jurisdiction to hear this matter.

## **Position of the Law**

In all trials before the International Crimes Division of the High Court, it is a legal requirement to hold a pre-trial hearing. The practice of holding a pre-trial hearing and confirmation of charges in criminal trials is a well-established procedure followed by the International Criminal Court. The International Crimes Division of the High Court of Uganda is a specialized court as established by the High Court (International Crimes Division) Practice Directions, Legal Notice No. 10 of 2011. This Division of the High Court aims at operationalizing the international standards applicable in the International Criminal Court of the Rome Statute to which Uganda is a party and therefore, guiding the practice of this Court. In keeping with the International law principle of *Pacta Sunt Servanda*, which simply means "agreements must be kept," Uganda having signed, ratified and domesticated the Rome Statute by the enactment of the International Criminal Court Act, 2010 is bound to perform its obligations under that Instrument.

Article 61 (1) of the Rome Statute of the International Criminal Court (hereinafter referred to as **the Rome Statute**) stipulates that:

*"Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the pre-trial chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her legal counsel."* [Emphasis Mine]

In our jurisdiction, the legal requirement for holding a pre-trial hearing was introduced by the Judicature (High Court) (International Crimes Division) Rules, 2016 (hereinafter referred to as **the ICD Rules**) specifically under Rule 6 (2) which stipulates that:

*"The Division shall, after an accused person has been committed for trial before the Division, hold a pre-trial conference..."*

The purpose of the pre-trial conference as per Rule 6 (2) (a)-(h) of the ICD Rules is to consider the facts of the case; the markings for identification of the evidence of the parties; any waiver of objections to admissibility of evidence; the settlement of some or all of the issues; the status of victims and witnesses and any special needs of the witnesses; the accused person and the defence witnesses, if any; the necessary orders and directions to ensure that the case is ready for trial, and that the trial proceeds in an orderly and efficient manner, and obtaining of such orders; the modifications of the pre-trial order if the accused admits the charge but interposes a lawful defence; and any other matters that will promote a fair and expeditious trial of the case.

However, it is prudent to note that the pre-trial hearing does not include hearing of witnesses as per Rule 12 (10) of the ICD Rules. The court is only expected to rely on the summary of the case and the evidence disclosed by the Prosecution not later than fifteen (15) days before the date of the pre-trial as per Rule 21(1) of the ICD Rules.

#### **Evidential Burden and Standard of Proof**

In all criminal matters, the prosecution bears the evidential burden to prove all the elements of the offence charged except in certain offences which however are not the subject of this case (**See:** *Woolmington versus DPP [1935] AC 462*). It is also trite that the standard of proof in criminal cases is beyond reasonable doubt (**See:** *Miller versus Minister of Pensions [1947] 2 ALL ER 327*).

However, this being a pre-trial, the evidential burden and the standard of proof will most likely differ since no witnesses are being called to testify and neither is any evidence being examined at this stage. Unfortunately, our law does not stipulate the evidential burden and standard of proof that should be met by the Prosecution during pre-trial hearings. (*See: Uganda versus Miria Rwigambwa HCT-00-ICD-SC-0006- 2021; Uganda versus Nsungwa Rose Karamagi HCT-00-ICD-SC-0007 of 2021*) As such and as earlier noted, we shall adopt the evidential burden and standard of proof provided by the Rome Statute since Uganda is a signatory to the same.

In light of the above, I shall consider Article 61 (5) of the Rome Statute which is to the effect that at the hearing (of confirmation of charges before the trial court), the

Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and **need not call the witnesses expected to testify at the trial**. [Emphasis Mine]

Article 61 (7) of the Rome Statute further provides for the evidential burden and standard of proof. It stipulates that:

*"The pre-trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on determination, the pre-trial Chamber shall:*

- *(a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a trial Chamber for trial on the charges confirmed;* - *(b) Decline to confirm charges in relation to which it has determined that there is insufficient evidence;* - *(c) Adjourn the hearing and request the Prosecutor to consider:* - *(i) Providing further evidence or conducting further investigation with respect to a particular charge; or* - *(ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court."* [Emphasis Mine]

The concept of *"substantial ground to believe"* was defined in the case of *Mamatkulov and Askarov versus Turkey of 4th February 2005 (Applications Nos. 46827/99 and 46951/99)* by Judges Nicholas Bratza, G. Bonello and J. Hedigan in their dissenting opinion where they stated that "substantial grounds to believe" means "strong grounds for believing." (**See also***: Soering versus United Kingdom, Application No. 14038/88 (ECHR); The Prosecutor versus Thomas Lubanga Dyilo, ICC-01/04/06-803-TEN 14-05-2007 1/157)*

From the foregoing, the evidential burden and standard of proof required by the court at the pre-trial stage must be strong and/or concrete and tangible in demonstrating or drawing a clear line of reasoning underpinning the accused to the specific allegations. (**See:** *Prosecutor versus Bosco Ntaganda ICC-01/04-02/06 at page 5*).

Thus, in determining whether the prosecution has met the above said evidential and standard of proof threshold, the Chambers ought to recognize that the evidence the Prosecution presented must be analyzed and assessed as a whole as was held in the case of *The Prosecutor versus Germain Katonga and Mathien Ngudjolo Chui ICC-01/04-01/07 at page 23*. This honorable court will adopt the same test in its evaluation of the evidence presented by the prosecution in this case.

#### **Issue**

*Whether there is sufficient evidence to establish substantial grounds to believe that the accused committed each of the crimes he is charged with.*

#### **Prosecution's submissions**

Prosecution on the count of aggravated trafficking in children contrary to section 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009, it reproduced the contents of each section of the law and then listed the following as the elements of the offence:

- 1. The victim is a child; - 2. The recruitment or transportation or transfer or habouring and receipt of the victim; - 3. By means of deception and position of vulnerabilty; - 4. For purposes of sexual exploitation; and - 5. Accused's participation. On the first element of the victim being a child, prosecution submitted that the witness statements of Ndagire Marion, Nakazzi Miriat as well as PEX7 (ID) show that the victim is a child under the age of eighteen (18) years.

On the second element of recruitment, transportation, transfer, habouring and receipt of the victim, prosecution submitted that the disclosed witness statements of the victim, Aisha Nansubuga and Najjuko Winnie show all elements. That the additional evidence to prove this element is contained in witness statements of the accused. That all these show that the victim was travelled from her guardian's home in Kyotera, received by the accused in Kampala who took her to her home in Kibuye and she started working in the accused's several businesses.

For the element of deception and position of vulnerability for purposes of exploitation, prosecution submitted that the disclosed evidence in the witness statements of the victim and the accused show that the victim was desperate for a job. That the evidence shows that she took up a job of domestic work at the accused's home but was instead ordered to work in the restaurant and later the massage parlour where she was sexually exploited as seen in PEX7 (ID).

Prosecution further submitted that its disclosed evidence and statements of the witnesses show that there are substantial grounds to believe that this offence was committed by the accused and prayed that this charge is confirmed.

#### **Accused's submissions**

Counsel for the accused on this count of aggravated trafficking in children contrary to sections 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009 reproduced what is contained in the said sections of the law and listed the elements of the charge of Aggravated trafficking in children as rightly stated by prosecution to be:

- 1. The victim is a child; - 2. The recruitment or transportation or transfer or habouring and receipt of the victim; - 3. It was done by means of deception due to the victim's vulnerability; - 4. For purposes of sexual exploitation; and - 5. Accused's participation.

On the first ingredient of the age of the victim, Counsel for the accused submitted that the evidence provided by the prosecution for purposes of proving age is insufficient. That the prosecution ought to have produced a birth certificate or the evidence of a parent in respect to the victim's age.

On the second and third ingredients of the charge, Counsel for the accused while quoting Article 34 (4) & (5) submitted that the said provision of the constitution recognizes that children can be employed. That the accused employed the victim as a housemaid and shop attendant. That in the circumstances, it cannot be said that the victim was recruited or transported or transferred or harboured and received by means of deception since she continuously worked without complaint as hired.

For the fourth ingredient, Counsel submitted that the victim's allegation of defilement is marred with major inconsistencies. That the victim in her statement states that she started doing massage on 11th April 20202 and the matter was reported on 13th April 2020 which is **two days of working in the massage parlour**. However, that according to Police Form 3A which was made on 13th April 2020, under paragraph 4, the accused person stated to her medical examiner that she was sexually assaulted **'two weeks back.'** Counsel further submitted that the question therefore is, "did the assault happen between 11th April 2020 when she started working at the parlour to 13th April 2020 when the matter was reported or it was two weeks back as she stated in PF3A made on 13th April 2020?"

Counsel for the accused also submitted that Police Form 3A is not sufficient proof that the victim was defiled at the parlour since it does not state when the rupturing of the hymen occurred. That the victim stated that she was assaulted the day all taxis were stopped to work by the president. That the defilement was not revealed to anyone. Counsel contended that it is public notice that total lockdown was announced on 21st March 2020 yet the accused worked in the massage parlour between 11th April 20202 and 13th April 2020. Counsel argued that this time would be more than two weeks that she states. That the victim's statement is filled with inconsistencies which cannot be ignored. Counsel then submitted that the prosecution evidence did not establish whether there was sexual exploitation or certainty when the sexual exploitation occurred.

It was Counsel's submission that the evidence provided is insufficient for the charge of aggravated human trafficking against the accused but especially for A2. Counsel therefore invited court not to confirm the first count due to insufficiency of evidence to support the charge.

On the fifth ingredient of the accused's participation, Counsel for the accused submitted that the victim does not state who told her to bear with all conditions once she enters the massage room. Counsel argues that the victim could have been told so by her workmates or someone else. Counsel also contended that the victim was employed as a housemaid and shop attendant not the massage parlour. That any change in assignment due to the prevailing circumstances cannot be said to have been the initial intention or purpose of the accused.

Counsel therefore prayed that court finds that the evidence as tendered by prosecution is insufficient for purposes of confirmation of the charges and should accordingly dismiss the charges.

### **Resolution of issue**

*Whether there is sufficient evidence to establish substantial grounds to believe that the accused committed each of the crimes he is charged with.*

## **AGGRAVATED TRAFFICKING IN CHILDREN**

The offence of aggravated trafficking in children is provided for under sections 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009 (hereinafter referred to as **the Trafficking in Persons Act**).

Prosecution alleges that Nakazzi Miriat on the 8th day of February 2020 in Kyotera District transported or transferred or received Ndagire Marion, a girl aged seventeen (17) years to work at Miries Massage SPA at Kabowa, Lubaga Division in Kampala District for purposes of sexual exploitation.

The ingredients of the offence of aggravated trafficking in persons/children are the following:

- (a) the age of the victim; - (b)the act of recruitment or transportation or transfer or habouring and receipt of the victim; - (c) by means of deception due to the victim's vulnerability;

- (d)for purposes of exploitation; and - (e) the accused's participation.

#### **The age of the victim.**

The prosecution as per the indictment states that the victim was seventeen (17) years old at the time of the commission of the offence. It has been judicially noticed that the most reliable way of knowing a child's age is through the testimony of her parents, the victim's birth certificate and medical evidence, among other things. The prosecution submitted that to prove the age of the victim, they intended to rely on the witness statements of the victim, the accused and Police Form 3A which is the medical examination report of the victim.

Upon perusal of the said statement of the victim and accused and Police Form 3A, I find that it was the victim's evidence in her witness statement that she was aged seventeen (17) years at the time of the alleged commission of the offence against her. The accused herself confirms that fact when she states in her witness statement that she received a call from the mother of the victim who told the accused that she was going to send to her the victim who was seventeen (17) years old to work for her as a maid since she was not schooling. This is further corroborated by PF3A where the examining medical/health practitioner states that the victim is apparently seventeen (17) years old in reference to the preference of just erupting third molar in her right jaw and absence in the other jaws.

Counsel for the accused in her submissions contends that the evidence of this ingredient is insufficient for purposes of proving age. That the prosecution ought to have produced a birth certificate or evidence of a parent in respect to the victim's age. I would like to note that whereas production of a birth certificate and evidence of a parent in respect to the victim's age is a more sure way of determining the victim's age, it is not the only way one's age can be proved. Medical evidence is also another way in which a person's age can be proved. In this instance, it is even the accused's evidence in her witness statement that she was told by the mother of the victim that the victim was seventeen (17) years old at the time she suggested sending the victim to the accused to work for her as a housemaid.

It is therefore my finding that the statements of the victim and the accused together with the said medial report are sufficient enough to prove the age of the victim.

# **The act of recruitment or transportation or transfer or harboring and receipt of the victim.**

On the issue of harbouring and receipt of the victim, the victim in her witness statement marked as PEX1 (ID) and in her additional witness statement marked as PEX2 (ID) stated that she was connected to the accused by a friend of hers to work as a maid. That she was given the accused's number whom she kept communicating to until she reached the accused's home. This is corroborated by the evidence of Aisha Nansubuga marked as PEX3 (ID) who is a neighbor of the accused who stated that the victim had been staying with the accused since February 2020. The accused herself in her witness statement marked as PEX7 (ID) does not deny having received and harboured the victim in her home to work as a house maid.

I find the said statements sufficient enough to prove the ingredient that the accused recruited, received and harboured the victim in her house to work as a housemaid.

#### **By means of deception due to the victim's vulnerability.**

The victim in her witness statement that was marked as PEX1 (ID) stated that her friend Flavia got her a job to work as a house maid in Kampala. That when she reached the accused's place, she started working as a house maid but it reached a time where she could even work in the shop. That after a while, the accused took the victim to Miries massage Spa and she started doing massage. This is also corroborated by the witness statement of Aisha Nansubuga marked as PEX3 (ID) who stated that the victim had been working as a housemaid at the accused's home but also at Miries massage Spa. The witness statement of Najjuko Winnie marked PEX4 (ID) who was an employee of Miries Parlour confirms the fact that the victim was working in the massage parlour. The accused in her additional witness statement marked as PEX8 (ID) also attests to the fact the victim worked on about three clients who wanted massage because she wanted.

I noted that Counsel for the accused on this ingredient while quoting Article 34 (4) & (5) of the Constitution of the Republic of Uganda submitted that children aged sixteen (16) years and above can be employed and the accused employed the victim as a housemaid and a shop attendant. That in the circumstances, it cannot be said that the victim was recruited or transported or transferred or harboured and received by means of deception since she continuously worked without complaint as hired.

On the above submission by Counsel for the accused, I would like to state that it is not in dispute that the victim at her age can be employed, however the fact that she can be employed does not make the victim less of a child. The Constitution of the Republic of Uganda, The Children Act, Cap. 59 (as amended) and the Prevention of Trafficking in Persons Act, 2009 all recognize a child to mean a person below the age of eighteen (18).

In the premises, having agreed to the fact that the victim can be employed, the question that needs to be examined are the means by which the victim was recruited and/or employed. Whereas Counsel for the accused submits that it cannot be said that the victim was recruited or transported or transferred or harboured and received by means of deception since she continuously worked without complaint as hired, I would like to honourably disagree with her. I find that the victim was recruited by means of deception because whereas she came to work as a house maid at the accused's home, the accused later told her to work as a shop attendant in her retail shop and later to work in the massage parlour where she was unfortunately defiled from.

I also find that the fact that the victim continued to work without complaint does not in my view negate the element of deception but instead proves that the victim was in a position of vulnerability to the extent that even when she was asked to do work beyond which she was not recruited for per se, she could not complain. It should be noted that the victim had come from far that is, Kalangala, Rakai, Masaka and she had no way of going back to her home especially due to the fact that it was during the first lockdown of the COVID 19 pandemic. I am therefore inclined to believe that the victim's continuous stay and working for the accused was because she was in a position of vulnerability and not because she was comfortable with the kind of work she was doing for the accused. In her additional witness statement marked as PEX2 (ID), the victim stated that she came to the accused's home on 8th February 2020 and started to work. That she could wash the massage bed sheets and towels. That the work was too much because she could even cook food and clean the house. I do not find such a statement by the victim to be one where she voluntarily and/or happily did all that work although she continued to do it without complaint. In light of the above, I find that there is sufficient evidence from the Prosecution to support the said element of the victim having been recruited, received and harboured by means of deception due to the victim's vulnerability.

However, it is prudent to note that where the victim of trafficking is a child, it is not necessary to prove the ingredient of "means" and their consent too shall be irrelevant as per section 3 (3) & (4) of the Trafficking in Persons Act. The said subsections provide that:

*"(3) The recruitment, transportation, transfer, habouring or receipt of a child for the purpose of exploitation shall constitute "trafficking in persons even if this does not involve any of the means set forth in subsection (1) of this section.*

*(4) The consent of the victim of trafficking or if a child, the consent of his or her parents or guardian to acts of exploitation shall not be relevant."*

Having earlier established that the victim was a child, I equally find that the means used to recruit, transport, transfer, habour or receive her is irrelevant and her consent is irrelevant too. In this case, it is not in dispute that the victim was staying at the accused's house where she was working as a house maid, in her retail shop and later in her massage parlour where she was forcefully sexually assaulted from.

## **For purposes of exploitation.**

Section 2 (d) of the Prevention of Trafficking in Persons Act, 2009 interprets exploitation to include at a minimum, **sexual exploitation**, forced marriage, child marriage, forced labour, **harmful child labour**, use of a child in armed conflict, use of a person in illegal activities, debt bondage, slavery or practices similar to slavery, **servitude**, human sacrifice, the removal of organs or body parts for sale or for purposes of witchcraft, harmful rituals or practices. [Emphasis Mine]

The victim in her witness statement that was marked as PEX1 (ID) stated that her friend Flavia got her a job to work as a house maid in Kampala. That when she reached the accused's place, she started working as a house maid but it reached a time where she could even work in the shop. That after a while, the accused took the victim to Miries massage Spa and she started doing massage where she was unfortunately defiled. The victim's statement is corroborated by the medical report of the victim marked as PEX9 (ID) which revealed that the victim had an old and completely raptured hymen.

However, counsel for the accused in her submissions contended that the date on which the sexual assault is questionable and that PF3A is not sufficient proof that the victim was defiled at the parlour since it did not state when the rupturing of the hymen occurred. Counsel contended that the victim's statement is filled with inconsistencies which cannot be ignored.

I find that sexual acts can only be best proved by the person involved as it is normally a discrete act. In this instance, I believe that the witness statement of the victim shall suffice to prove the ingredient of sexual exploitation. The victim in her additional statement marked as PEX2 (ID) stated that the order from the boss (the accused) was that when she has a client in the room, she should lock the door with the key and then she starts massaging the client. That she was told to massage men's bodies including their private parts and that all the men she had been massaging had stiff penises. That it was only one client that forced her into having sex on the day all taxis were stopped from working by the president and he did it without using a condom. I find that the victim's statement is corroborated by the accused's evidence in her additional statement marked as PEX8 (ID) where she stated that she tells her workers to give privacy to the clients by locking the rooms and that the victim had worked on about three clients that wanted massage.

I am inclined to believe that the accused knew the nature of the business she was operating and the implications that came with working in a massage parlour. I do not believe that the accused was oblivious of the fact that some of the male clients would in the process of being massaged want to have sex with her employees. Najjuko Winnie in her witness statement marked as PEX4 (ID) states that the accused told them that when they massage a man and he wants sex, it is up to them to play sex with the client or not and that they could ask from the client the money they wanted.

In light of the above, I find that by the fact that the accused asked and/or allowed the victim to work in the massage parlour, she did so for purposes of sexual exploitation and indeed the victim was sexually assaulted by one of the clients on one of the fateful nights while she was massaging the same behind a closed door.

I find that Counsel for the accused's contention that the victim's statement is inconsistent in regard to when the sexual assault happened pre-mature. I would like to note that this matter is at pre-trial stage and as noted earlier, this stage does not require court to delve into the meritocracy and/or integrity of the evidence presented to court. The duty of court at this stage is just to determine whether on the face of it from the disclosures presented to it, it can establish sufficient grounds to believe that the accused committed each of the charges he/she is charged with. Whereas Counsel for the accused put up a spirited argument on this ingredient, I find that the said contestations shall be useful at the trial stage and not at this stage of pre-trial. The purpose of the pre-trial conference as earlier stated is to consider the facts of the case; the markings for identification of the evidence of the parties; any waiver of objections to admissibility of evidence; the settlement of some or all of the issues; the status of victims and witnesses and any special needs of the witnesses; the accused person and the defence witnesses, if any; the necessary orders and directions to ensure that the case is ready for trial, and that the trial proceeds in an orderly and efficient manner, and obtaining of such orders; the modifications of the pre-trial order if the accused admits the charge but interposes a lawful defence; and any other matters that will promote a fair and expeditious trial of the case and not necessarily to evaluate the evidence tendered in by the prosecution. [Emphasis Mine]

Without prejudice to the above, although not stated by the prosecution in its submissions, I realize that from the evidence presented by the prosecution as a whole, the victim was not only sexually exploited as per the meaning of exploitation under Section 2 (d) of the Prevention of Trafficking in Persons Act, 2009 but she was also a victim of **harmful child labour** and **servitude**. The victim was required to work in a massage parlour at her age well knowing the harmful implications that come along with that. The victim was also subjected to servitude when she came to work as a house maid but ended up working in the accused's retail shop and massage parlour at the same time. I find that the victim was required to do work that was beyond her capacity even if she could be employed at her age.

Article 34 (4) of the Constitution of the Republic of Uganda, 1995 (as amended) as rightly submitted by Counsel for the accused, stipulates that children are entitled to be protected from social and economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education or to be harmful to their health or physical, mental, spiritual, moral or social development. Clause 5 of the same goes ahead to clarify that the children referred to in clause 4 are those under the age of sixteen.

Much as I have already agreed to the fact that by the said Article of the Constitution, the victim was permitted to be employed because she was seventeen years of age, I still maintain that the victim was still a child by virtue of the fact that she was below the age of eighteen (18) and should not have been exposed to harmful child labour and servitude. I find that the victim was required to work in a massage parlour which could be harmful to her health, physical, mental and moral development. I am cognizant of the fact that Article 34 (4) of the Constitution of Uganda is in relation to children below the age of sixteen (16) years but I do not think that the intention of the drafters of the law was that any child above the age of sixteen (16) could not be protected by this very law from employment that was likely to be hazardous or to interfere with their education or to be harmful to their health or physical, mental, spiritual, moral or social development as is in the instant case.

In the light of the above, I find the above disclosed evidence on the face of it indicates that the victim was generally exploited but specifically that she was sexually exploited, engaged in harmful child labour and servitude. The prosecution's disclosures are sufficient to prove the ingredient of exploitation.

## **The accused's participation.**

Considering the evidence presented by the prosecution as a whole, it is not in dispute that the accused harboured and received the victim to work for her as a housemaid at her home. It is also not in dispute that the victim at some point in time during the quarantine worked at the accused massage parlour. The accused in her witness statement which was marked as PEX7 (ID) affirms to the fact that she welcomed the victim into her home in February 2020 while in her additional statement that was marked as PEX8 (ID), the accused states that during the quarantine, the victim worked on about three clients that wanted a massage. I find that the above disclosed evidence sufficient enough for the prosecution to prove the accused's participation in the alleged offence.

In the premises, I find that there is sufficient evidence to establish substantial grounds to believe that the accused committed the offence of aggravated trafficking in children contrary to section 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009.

## **Conclusion**

Having considered all the evidence disclosed by the Prosecution and in absence of any evidence disclosed by the accused and/or her Counsel, I find that the evidence presented to this honorable court is sufficient to establish substantial grounds to believe that the accused committed the offence of Aggravated Trafficking in children contrary to Section 3 (1) (a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009. The said charge is hereby confirmed and the accused is accordingly forwarded for trial.

I so order.

**Dated at Kampala this 20th day March 2023.**

..........................................

Alice Komuhangi Khaukha

## **JUDGE**

20/03/2023.