[2023] UGHCCRD 181

THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT KAMPALA, HODEN AT KAMPALA, SITTING AT NAGURU REMAND HOME HCT-00-CR-JSC-0143-2023. UGANDA ===================================

## **VERSUS**

A1) W. A. W alias V

$\mathcal{A} = \mathcal{A}$

A2) S. A alias J alias KE

A3) K. H alias H alias T. L ======================JUVENILE OFFENDERS

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

## RULING ON DISPOSITION ORDER AND REASONS.

- 1. The above mentioned juvenile offenders were indicted for *murder Contrary to* section 188 of the Penal Code Act in the first count and aggravated robbery c/s 285 of the Penal code Act in the second count. - 2. The particulars of the offence are that the three juveniles and others at large on the 13^th day of May 2022 at Kitintale Zone Seven Nakawa Division in Kampala District with malice aforethought unlawfully killed Ejoku Elias by hitting him with a paver during a robbery in which they robbed his lap top, mobile phone from which they withdraw shillings $70,000/=$ . - 3. When they were arraigned before this court they pleaded guilty to both counts, hence this ruling on the appropriate orders and reasons. - 4. This case presents circumstances that calls for a review in the juvenile justice penal laws with a view of providing holistic rehabilitation programs for juvenile delinguents. - 5. Section 88 of the Children Act provides for consideration of the age of criminal responsibility as at the time of commission of the offence. The age at the time of commission of the offence is what determines the procedure to be adopted and the punishment. This is intended to protect the juvenile offender from being subjected to trial procedure of adults. The section specifically provides as follows:

$\mathbf{1}$

(2) In determining criminal responsibility or an order for a child offender, the police, prosecutor or a person presiding over the matter shall consider the age of the person at the time the offence was allegedly committed.

(3). Subject to subsection (2), court shall determine the age based on a full assessment of all available information, giving due consideration to official documentation including a birth certificate, school records, health records, statements certifying age from the parent or child or medical evidence.

(4). Specialized protection for children under this Act shall apply to all children below the age of 18 years.

(5). A person shall be presumed to be a child if he or she claims or appears to be younger than 18 years old pending a conclusive determination of age by court.

- 6. In any proceedings before the High Court in which a child is involved, the High court shall have due regard to the child's age and to the provisions of the law relating to the procedure of trials involving children as provided under section 104 (3) of the Children Act. - 7. The juveniles before court were at first treated as adults because their PF24A indicated they were adults. They complained and an order was made for their medical examination which report indicated they were all below 18 years because the bones had not fused. Since the law on criminal liability as cited above counts from the time of the commission of the offence, this court considers them to be juvenile offenders at the time of commission of the offence because it was scientifically proven as per the medical report dated 14/12/2022 where Dr. A. S. Kiwanuka a radiologist after examining their plain Xray of the knee joints established that K. H, S. A were below 18 years of age. - 8. The offences that were proved against all the three juvenile offenders on their own plea of guilt ideally attracts death sentence as the maximum. - 9. However sections 104 and 104A of the Children Act forbids a sentence of death in mandatory terms to wit "A child shall not be sentenced to death "(section 104) and section 104A forbids pronouncement of death sentence on or

$\overline{2}$

recorded against a person who appears to the court that at the time when the offence was committed, was below the age of eighteen years.

- 10. The mother and sister of the deceased attended the Children's court at Naguru Remand home. The physical, psychological and emotional trauma the death of the deceased has caused to the family can only be explained by them. The entire court observed that they were derailed and felt awful. The loss of a young innocent, promising man in a senseless murder cannot easily be forgotten or forgiven unless it is by the grace of God who is the alpha and omega of human beings which grace is sufficient for all abound. Their emotional pain filled the family court. Their desire for a harsh punishment was a writing on the wall but sadly to say, their conviction that the juvenile offenders were adults was informed but by their strong grief. - 11. Any human being found in a situation like the family members of the deceased, wherein a bread winner, an investment; for the education of children in our African set up is an investment, a future leader and lineal ascendant is murdered in cold blood just to pick his mobile phone and a laptop cannot be expected to wish the killer anything else but the maximum sentence which in this case as known by the general public is death. - 12. The juvenile offenders according to the probation and social welfare officer's reports were school drop outs. S. A dropped out of school from Primary five and was hawking second hand clothes, K. H dropped out from primary six and was a casual laborer in the community, while W. A. W dropped out of primary four and was a waiter at the mother's restaurant. - 13. That they were in an adult prison for three months before they were transferred and claimed to have been influenced by bad peer groups. - 14. He noted that the community is very bitter with the rampant robberies more especially in the metropolitan area of Kampala and seek court to punish heavily such juvenile offenders so that others can desist from committing crime. He however did not reach out to the victims of this crime. - 15.1 however found the report wanting because it does not indicate clearly from whom he got information about the community reaction. The Probation and social Welfare Officer's report is a very important document which guides Court to arrive at the appropriate orders.

- 16. Before considering the appropriate orders, court must consider several factors. In the instant case, it is important to note that juvenile violent crime is increasing at an alarming rate. - 17. The criminal conduct of juvenile offenders involved in cases of aggravated robbery has had a devastating impact on the public's sense of security on victims and on the families of victims. - 18. The juveniles of today are involved in a wide range of offense types that are serious in nature and quite violent. - 19. Because of the rampancy and seriousness, the violent behavior of juvenile offenders especially those above 14 years, the law pertaining to penalty should be revisited with a view of controlling this errant behavior to ensure public safety and security. - 20. Use of deadly weapons to wit pavers, knives, pangas, bricks and iron bars by juvenile offenders has become very rampant where victims are hit on sensitive parts of the body. - 21. The intention is to use excessive force to disable their victims and rob them at the cost of their lives and wellbeing. - 22. As a result, the juvenile justice system is being corrupted by enhancing the age of juvenile suspects/offenders who commit serious crimes like in the instant case and unlawfully remand them with adults in adult prisons and eventually subject them to trial in the criminal court for adults. This was the case here before the Juvenile offenders were examined and transferred to Naguru Remand Home. - 23. By the time the truth is realized, the juvenile offenders may become hardened criminals. Some of these start as petty offenders and come out to engage in more serious crime. - 24.1 must boldly state that as a nation, we have very good laws and policies pertaining to the administration of juvenile justice but implementation is far from perfect. Matters involving children in conflict with the law or child neglect are the least funded. - 25. Street Children and or neglected children are the most vulnerable and future violent robbers, rapists, defilers and murderers.


- 26. With the growing number of juvenile offenders involved in violent and serious crime, the stake holders in the criminal justice system including those specifically involved with youth like the Ministry of Labor Gender Youth and Social Development, Ministry of justice and constitutional Affairs and justice for children actors cannot avoid going through a revolutionary period of change including revisiting the law on punitive orders for juvenile offenders who use extreme violence and deadly weapons during the commission of the offence. - 27. The juvenile justice system must have deliberate programs to focus its efforts and resources on this group of juvenile delinquents with a view of having a wide range of effective delinquency prevention and intervention strategies. They may not be very many now but the numbers are increasing every day. - 28. The current juvenile justice system from the perspective of victims and the public does not dispense sufficiently tough sanctions to serve as a deterrent and provide accountability to victims of crime and society. - 29. Kampiringisa National Rehabilitation Center cannot accommodate juvenile offenders involved in violent crime as it has no security systems like a wall fence that can prevent the juvenile offenders from escaping. - 30. It is high time for KNRC to be elevated to a center that can adequately cater for the increasing number of juveniles involved in serious and violent cases with a view of subjecting them to serious rehabilitation programs through counselling and skilling as most of them get involved in crime as a means of earning a living. - 31. As a nation, we cannot afford to allow this dangerous trend to thrive under the pretext of child friendly criminal justice system as members of the public live under fear of the errant youthful criminal gangs. The precious lives lost can never be atoned. - 32. At the same time, administration of criminal justice actors must appreciate the need to support delinquent juveniles in our community. Three years of custodial sentence as maximum right now may be sufficient for a fourteen year old and below child offender, but certainly may not be deterrent enough for a fifteen and below Eighteen child offender who murders with malice afore thought or robs with violence, or rapes a woman and or defiles an extremely young child.

- 33. Such juvenile offenders need to be seriously rehabilitated and protected from the public because they may be subjected to mob justice. The non-punitive orders also encourage recidivism which is not good for them and the community. - 34. Because the law does not allow publicity of juvenile cases, it may not be easy to track and find a way of suppressing a blossoming criminal career. It is very difficult for the prosecutor to have the previous record of the juvenile offender. - 35. In the instant case the prosecution informed court that she has no past record. So the juvenile offenders are presumed to be first offenders. - 36. However she prayed for the maximum punishment since the offence of robbing and hitting victims with pavers has become rampant. - 37. The defense counsel prayed for mercy on behalf of the juvenile offenders because they have since reformed. Their plea of guilt she submitted should be treated as a sign of remorse. The $2^{nd}$ and $3^{rd}$ Juvenile offenders were first remanded in an adult prison for three months and at the time of trial, they had spent over 8 months on remand. - 38. Section 94 of the Children Act provides for the orders a family and children court can make. - 39. High Court which presides over capital cases committed by juveniles has the power under section 94 (g) to order for a custodial sentence of three years only in cases punishable by death under the Penal Code Act. - 40. Three years is therefore the most severe sentence a juvenile offender can be ordered to serve in a detention facility. See Uganda versus C. B (a juvenile) (criminal session 177 of 2017, [2018] UGHCCRD and UGANDA VERSUS O. D ( a juvenile) (Criminal session 80 of 2018 [2018] UGHCCRD Both of Gulu High Court Circuit.

The law does not suggest that the sentences in case of several counts can be served cumulatively.

41. The law was further amended in 2016 wherein section 94 of the Principal Act was amended by inserting subsection 6(a) which provides that :

$6$

"For avoidance of doubt, a person who has attained the age of eighteen at the time of sentencing shall serve the sentence in an adult detention Centre."

- 42. The juvenile offenders were border line cases at the time of commission of the offence. They have continued to grow while under custody. - 43. Given the violence involved in this case and the serious ness, court ordered for the examination of the juvenile offenders to determine their age at the time of sentencing and or making appropriate orders. This was taken as a precautionary measure to avoid mixing young adults with juvenile offenders. - 44. They were referred to Mulago National referral Hospital on 14^th June 2023 for examination of their knee and wrist radiography.

They were examined by Dr. Balyejusa Stephen a radiologist and Dr. Babua Phillip a radiology resident 111 who prepared and signed the reports dated 14^th June 2023.

45. The results for all of them; S. A, K. H and W. A. W were the same.

On the **WRISTS X-Ray**, the report reads

"There is fusion of the ossification of the distal radius and ulna. All the carpal bones are visualized and fully ossified. The ossification centers of the metacarpals are fused.

The bone mineralization appears normal. The bone alignments appear normal. The surrounding soft tissue structures appear normal.

For the KNEES;

There is fusion of the ossification centers of the distal femur, proximal tibia and proximal fibula. The patella is super imposed on the femur and normal. Conclusion.

Findings are in keeping with adult wrist and knee radiographs (above 18 years).

- 46. Considering the gravity of the offence where precious life was lost in the most gruesome manner, this court finds that a custodial detention order would serve as a semblance of justice to the victims of crime and deter the offenders from committing crime and others out there. Court is also agreeing with the prosecution that they deserve the maximum the law provides for juvenile offenders. - 47. Ideally a plea of guilty is supposed to mitigate the sentence because it is a sign of remorse. However, after considering all the circumstances of the case, court

$\overline{7}$

is of the view that the juvenile offenders deserve to be put out of circulation for some time to enable them reflect on their violent criminal conduct, feel the consequences of involving themselves in crime, recover from the effect of shading innocent blood which will serve as a deterrent to them.

- 48. They have been in custody since 22/9/2022 which is 8 Months and 25 days. - 49. The law requires this court to put into consideration the period spent on remand, have it mathematically calculated and subtracted from the sentence given. - 50. In view of the gravity of the offence, all of the three juvenile offenders are ordered to serve a custodial sentence of three years on each count, less the period spent on remand which is eight (8) Months and 25 days leaving them with a balance of 2 years, three months and 5 days which sentences are to be served concurrently. - 51. Since they are now adults as per the most recent medical report and for their own safety since the community is reported to be bitter, they should serve the custodial order from Kitalya Maximum Prison. - 52. Having been found responsible for the murder and robbery on their own plea of guilty they have no right of appeal against the finding of guilty, but they have a right of appeal against the legality and severity of the disposition order within a period of fourteen days from today.

Dated at Kampala this 16^th day of June 2023.

**MARGARET MUTONYI, JHC SESSION JUDGE.**