Kampala- In 2010, Masaka High Court Judge Moses Mukiibi found a 23-year-old man guilty of aggravated defilement. An offence he had committed seven years earlier when he was still 16. During these seven years, the man had been on remand.
Prosecution alleged that on March 15, 2003 at Kyabi trading centre, Lugusulu Sub-county, Sembabule District, the boy had unlawful sexual intercourse with a one-year-and seven month-old baby.
The victim’s mother had left her behind the house of one Annet Mukankusi as she went to collect banana leaves from her garden.
She later heard her child crying and returned, only to find the boy inside her house holding the victim on his laps. According to the mother, who was the prime witness, when the boy saw her arrive, he got frightened and put the child down. She said there was some “whitish water” near the child’s private parts. Upon examination by a doctor, it was found out that the girl had been defiled.
Seven years later, the judge correctly evaluated the evidence and arrived at the correct verdict. He then sentenced the juvenile to 12 years in prison. However, the sentencing was contrary to the Children’s Act that requires that such files for juveniles be remitted to the Family and Children Court for appropriate sentencing and the jail term should not exceed three years.
Because the boy and his lawyer Henry Kunya, were dissatisfied with the procedure that the judge had used, they appealed the ruling in the Court of Appeal. Justices Remmy Kasule, Kenneth Kakuru and Rubby Opio Aweri of the Court of Appeal in their verdict faulted the trial judge, (Moses Mukiibi) for being ignorant of the Children’s Act.
The Court of Appeal justices observed that the trial judge violated the juvenile’s constitutional rights, and ordered his immediate release from prison.
They added: “Three years imprisonment is the maximum sentence the appellant could have served under Section 94 (1) (g) of the Children Act (Cap 59). Regrettably, he has been in prison much longer. The learned trial judge, therefore, had no jurisdiction to impose punishment on the appellant. The sentence imposed by the learned trial judge was therefore illegal and it is accordingly set aside.”
In order to ensure that such scenarios do not happen in the future, the three Justices ordered the court Registrar to bring to the attention of the DPP and other courts, this anomaly in administration of justice for children.
The juvenile was relieved and excited when court ruled that he should be released immediately. He was taken away by his aunt who stayed in Bwaise, a Kampala suburb.
As Mr Kunya says, his client is among the many juveniles languishing in jail partly because the parties involved could be ignorant about the Children’s Act.
A Judiciary survey, Roundtable on Juvenile Justice dated May 23, 2013 to review the law and policy on juvenile justice, address the challenges faced in administration and forge a way forward, showed that Naguru Remand Home had 222 juveniles (13 girls and 209 boys). Twenty eight of them had been committed to the High Court for trial over capital offenses.
The survey further showed that Mbale Remand Home had 58 inmates with 26 cases handled, reducing the number of those pending to 32. Masindi Remand Home had a total of 26 inmates with (25 boys and one girl. Eight of them had been committed to High Court for trial with three awaiting committal). Gulu Remand Home had a total of 21 inmates (20 boys and one girl). Two were committed to High Court for trial while three were waiting for committal. Fort Portal Remand Home had a total of 19 inmates (18 boys and one girl).
Aside from the fact that the juveniles spend much longer incarcerated than they should, the court process they are taken through also has challenges.
Outgoing Inspector of Courts and Deputy registrar of Family and Children’s Court and now High Court judge designate Margaret Mutonyi, explains that juveniles are not supposed to be arraigned in a court dock like adults.
Instead they are supposed to sit in a friendly environment such as a round table with the magistrate and discuss the issues.
“This kind of set up, is intended to make the juvenile offender feel at ease since the judicial officers don’t robe themselves and also don’t put on wigs that normally create an intimidating environment in an ordinary court set up,” she explained.
Ms Mutonyi further said that the probation and welfare officers are supposed to accompany these juvenile offenders to court and also try to counsel them to find out what could have made them commit the alleged offence.
“For example, these juveniles in towns, the probation officer could establish why the child ran away from the village or from his parents,” Justice Mutonyi says.
In addition to that, Principal Judge Yorokamu Bamwine says the judiciary has a policy on not remanding juveniles with adults. That said, Dr Bamwine adds that the Judiciary faces a big challenge of not having sufficient remand homes in most parts of the country and as such, there is a big temptation to detain the juveniles with adults.
according to a recent judicial report, “Inspection Report on Nakawa Chief Magistrates Court” dated April 2, 2014 conducted by Justice Mutonyi on Nakawa Court in Kampala which is meant to be a model family and children court in the country, the place is no longer a model court.
Nonfunctional court houses
The report findings showed that the court has been taken over by judicial officers and the friendly court environment for children is no more. What was meant to be a special room for conducting business of children’s affairs, has turned into a waiting room for litigants, lawyers and witnesses appearing before grade one magistrates. The remand juveniles sit on the floor while the advocates, witnesses and other stakeholders remain standing, crowded in the room.
The report also shows that the juvenile offenders are treated like adults with no special attention and care aimed at helping them reform.
Furthermore, the head of High Court, Criminal Division Justice Lameck Mukasa explained that children are not only those in conflict with the law but even those affected, such as victims or witnesses.
“There are no counselling centres to rehabilitate the children after the trauma they have gone through and those who are affected medically. However, this is the responsibility of the Gender ministry. Our work as judicial offices is to hear the cases,” Justice Mukasa, whose docket is that of criminal juvenile justice, stated.
He also faulted the state and defence lawyers whom he said should always guide the judges to properly handle their matters according to the Children’s Act, stressing that the juvenile justice system must be in the best interest of the child.
According to the Children’s Act section 2, a child is anyone under the age of 18. Section 88 puts the minimum age of criminal responsibility at 12.
Although age is crucial in determining who a juvenile offender is, at times the police find it difficult to establish the age of a child and sometimes just assume. As a result, sometimes, children below 12 years are charged and children below 18 years are charged as adults or adults above 18 years are charged as juveniles.
Assistant Superintendent of Police in charge of Child and Family Protection Unit at Central Police Station in Kampala Ketty Nandi observed that some of juvenile offenders don’t know when they were actually born as their parents never told them.
“Due to lack of hospital birth records like the birth certificates in some hospitals, it’s hard to tell the exact ages of some offenders. Some of them fear to reveal their right ages because they want to be treated as young people and yet they are above 18 years old,” she says.
What they do when they are stuck, Ms Nandi says, is check out for themselves how old a child is by counting the number of teeth the person has. Any suspect with more than 32 teeth is an adult explains Ms Nandi.
The commonly committed offences by juveniles according to the annual police reports of 2008 and 2009, were defilement, theft and assault.
The Children’s’ Act demands that where a child appears before a court and is charged with any offense, the magistrate or person presiding over the court shall inquire into the case and unless there is a serious danger to the child, he or she should be released on bail.
The sureties who can stand in for the child may be his parents or guardians who shall be bound on a court bond not cash.
If the juvenile offender is not released on bail, court is mandated to record the reasons for refusal and inform the child of their right to apply for bail before a higher court like High Court.
Courts that try children
According to the juvenile justice report by Save The Children done in 2010, there are three categories of courts that can try juveniles;
Local Council Courts: They are meant to play a central role in the administration of juvenile justice legislation, but have been constrained by their lack of training on the law and on juvenile justice issues and often refer the children to remands homes.
Children and Family Courts: Children and Family Courts have the jurisdiction to hear and determine most criminal charges against juveniles except those of capital nature.
According to the Children’s Act, it demands that there shall be a Family and Children’s Court in every district and a magistrate not below the rank of Grade Two shall be assigned to preside over the juveniles’ cases.
High Court: Children charged with capital offences like aggravated defilement, murder, and robbery among other offences are tried by the High Court. Usually, it’s at this level that lawyers come in to represent the juveniles as mandated by the law.
Situation of remand homes
There are five remand homes in the country serving the different regions where they are situated. They include Fort Portal Remand Home, Gulu Remand Home, Mbale Remand Home, Masindi Remand Home and Naguru Remand Home.
Arua Remand Home is not operational yet. Kampiringisa National Rehabilitation Centre serves young offenders from all over the country.
According to a study, “Juvenile Detention in Uganda”, conducted by the African Prisons Project in 2010, there was no overcrowding in the remand homes and the number of children detained was manageable.
For example in the same year, Gulu Remand Home, had capacity for 40 children but it only had 18 in detention, Fort Portal remand home had capacity for 45 children but only 25 were in detention.
The report pointed out that the children in Mbale Remand Home and Kampiringisa had poor living conditions.
In Mbale, the children did not have adequate beds. On the other hand, Gulu had a surplus of unused beds and the living conditions were good. The same was reported about Fort Portal and Naguru.
The report noted that in both Mbale and Kampiringisa remand centres, corporal punishment in the form of caning was habitually used for disciplinary reasons.
Mr Paul Nyende, a psychologist at Makerere University, says the idea of remand homes is good however, there is need to make some improvements. He says children are dealt with at group level, an approach he calls ineffective.
“It is better to analyse and rehabilitate them at an individual level. Every individual in the remand home has their respective personal challenges which can only be noticed and help given, if a one-on-one interaction is conducted,” he says.
A child in jail on mistaken identity
My name is Paul Wabwire. I vividly remember in December 2004 when I woke up to the sound of police sirens at home. Out of curiosity, I got out of the house to find out what the problem was. I saw several people and among them was my landlord and the area LC1 chairman whom I both knew very well.
To my surprise, I was handcuffed and bundled onto the police patrol pick-up. I didn’t know why this was happening to me as I had not committed any crime.
I later learnt that I was a victim of mistaken identity as the police had come to arrest my cousin over alleged defilement but he was not present and they had instead arrested me.
At the time, I was 15 years old and in Senior Three, enjoying my third term holidays.
I remember the night before the police descended on me, my cousin whom I used to stay with did not return home.
On reaching Kawempe Police Station in Kampala, I was told that I was arrested following a complaint filed against me by a certain parent who accused me of forcing his underage daughter to have sex and in the process made her pregnant.
I failed to reply these men and cried uncontrollably thinking that they would have mercy on me and let me leave because I knew nothing about their claims.
Some of their questions I felt were vulgar and could not attempt to answer any.
Subsequently, I was taken into the police cells that had adults and the suspects there advised me that tears would not solve anything and that I was destined for prison.
At that time, I realised that I had lost my dream of becoming an engineer.
When the police continued interrogating me, I realised that it was my cousin who had defiled the girl in question as a certain girl had often come home and she was my cousin’s girlfriend.
I tried to explain to police that they should hunt for my cousin but nobody would listen to me.
I recall so well insiting that I did not want to make a police statement on grounds that police should first trace my mother in Iganga District so that I first talk to her. But the investigating officer reacted by slapping me several times and I found myself making a statement against my will.
Upon making the police statement to make the police file complete, I was arraigned before Buganda Road Court and charged with aggravated defilement.
I remember the then Chief Magistrate Margaret Tibulya, questioned the police officer whether I was 23-years-old as put on the charge sheet since I looked much younger. I could even hardly be seen as I stood in the court dock since I was young.
Because of the age dispute, the Chief Magistrate tasked the investigating police officer that I should be taken to Mulago hospital to ascertain my age.
The magistrate also felt reluctant to read me the charges and just remanded me to Luzira prison as we awaited the medical records about my real age.
I was brought to court several times from Luzira prison but the investigating police officer never turned up with the medical records to show my true age.
Life was horrible in Luzira. Following the ping pong, the medical results were brought and indeed the report indicated that I was a minor between 15 and 17 years.
The Magistrate ordered for my immediate relocation from Luzira prison to Naguru Remand Home.
When I got there, I felt a sigh of relief. I felt as if I were home as I could interact with my fellow juveniles though I was hospitalised for a few days due to change of diet from Luzira prisons’ poor diet to Naguru’s better one.
After staying in Naguru Remand Home for some months, I regained my full senses and started reading handouts which helped me know that if you spend almost six months on remand and nobody is following up your case, you ask court to grant you bail.
I eventually followed this advice and secured my complete freedom as there was nobody following up my case six months later, and the matter was later dismissed.
I remember I didn’t have money for transport but I just walked home in Kawempe happy that I had been set free.
As narrated to Betty Ndagire