Judge sets free juvenile incarcerated with adults

A High Court judge has ordered the prisons to release with immediate effect a suspected juvenile offender whose right to a fair hearing was violated when she was sent to Luzira’s women wing and incarcerated with adults.

Justice Margaret Mutonyi, in her ruling on June 5, observed that as a competent court of law, she could not just look away as this juvenile’s right to a fair hearing was being violated. 

The juvenile’s name has been withheld.

“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,” Justice Mutonyi held.

She added: “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 juvenile in question was on April 22, 2021, indicted for murder contrary to sections 188 and 189 of the Penal Code Act.

It is reported that the said juvenile on the same date at Kirundu Zone, Makindye Division in Kampala District, unlawfully caused the death of Rahuma Nabukeera.

On May 13, 2024, when the matter came up for plea-taking, her defence lawyer raised the violation of her constitutional righs to a fair hearing. 

Core to the defence lawyer’s argument was that the juvenile’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 the court be pleased to declare the trial a nullity for the said reason, which prayer Justice Mutonyi agreed with.

The judge in her analysis noted that at the time the juvenile allegedly committed the murder, which attracts a maximum punishment of death by hanging, she was 17 years seven months and 27 days, just four months and three days short of 18 years.  

She added that even if the juvenile 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 allegedly committed the offence.

This, she said, is 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. 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,” she observed.

The judge also took a swipe at magistrates who do not get interested in knowing the right age of the suspects brought before them.

She reasoned that once the suspect appears to be young, the magistrate is duty-bound to inquire into the age of the suspect. 

“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, which is the prosecution or defence commits fouls,” she ruled.

“This means that when remanding a suspect, the magistrate must be satisfied that he or she is remanding the suspect in a suitable place for that person. Adult suspects are remanded in adult prisons while juvenile offenders are remanded in Children’s Remand homes,” she further held.

Justice Mutonyi further noted that when it comes to juvenile justice, child offenders have specific laws that apply to them. 

She said in this particular case, the suspected juvenile offender was treated as an adult right from the time she was arrested, charged, and committed for trial and that she was remanded in an adult prison just because the charge sheet put her age at 19 years.

Section 99(4) of the Children Act provides for the discharge of a child 12 months after plea taking if the trial is not completed. 

The judge also noted that the juvenile had been on remand for more than three years which is far and above the maximum sentence even if the offence was proved against her. 

The law demands that in case a child is convicted of committing an offence punishable by death, the child is detained for not more than three years.

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