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.