Prime
When kids kill, amend the law and try them as adults
Author: Gawaya Tegulle. PHOTO/NMG
What you need to know:
- Uganda is full of stories of children (usually students) committing serious crimes, but then they get away with their sins because they are children.
- The Kyamate tragedy should force a rethink of our juvenile justice system and benchmark with countries where a child, under special circumstances, can be and really must and ought to be, tried as an adult and sentenced as an adult.
As a lawyer you never forget your very first case! But then again, neither will a pilot his first flight nor a surgeon his first op, or anyone their first anything, so maybe I’m not saying anything unique. But point is, my very first criminal case that introduced me to the Bar, 11 years ago, was an arson. My client, a student, was accused of setting fire to a school! Even though I was newly enrolled I won the case as soon as it had begun, while smiling quietly, sipping a soda, legs crossed.
Reason was simple: my undergraduate research project – supervised keenly by the good Prof John Ntambirweki at Uganda Pentecostal University – was a critique of the juvenile justice system, so I understood that area of law like the back of my hand. It (hey, not my hand!) is a very wide domain laced with very many small, hidden thorns that prick hard. The State had a very impressive case, painstakingly investigated and hard to defend against; but I raised a small, simple objection premised on a tiny, invisible rule and everything collapsed immediately. See, our juvenile justice system generally favours children; it aims not to punish, but to rehabilitate offenders. In fact, no lawyer defending a child need get ulcers, rheumatism or lumbago when entering criminal court!
The saddest tale in town just now is the burning of a murder-arson in a school dormitory in Kyamate Secondary School, western Uganda, in which a student was tied to his bed, apparently by fellow students, doused with petrol and set alight – decimating both boy and building. The suspects arrested are all minors, which brings the case squarely into the domain of juvenile justice. That means one thing: if found guilty the maximum they can be jailed for is three years under Ugandan law. And for good behaviour, they’d get remission under the Prisons Act, meaning the longest they can stay in jail is two years. Now that looks like really stupid…and it is! For avoidance of doubt, this column supports the presumption of innocence and, therefore, presumes the suspects innocent.
Uganda is full of stories of children (usually students) committing serious crimes, but then they get away with their sins because they are children. The Kyamate tragedy should force a rethink of our juvenile justice system and benchmark with countries where a child, under special circumstances, can be and really must and ought to be, tried as an adult and sentenced as an adult.
Under our law, being a child (you are below 18 years) automatically insulates you from the vagaries of the criminal legal process. But in developed legal systems, take the United States of America, there is a provision for a complete waiver of the protection afforded by the law because the accused is a minor. On application of the prosecution, the judge may issue a ‘waiver’ if there are special, manifest aggravating factors.
For example, the particularly horrific nature of the crime, the level of planning and sophistication that was put into it, the gross effect on the family of the victim and society, the age of the minor (if they are in the upper echelons of minority age), or if the kid has a bad track record and may not be easy to rehabilitate. When kids sit down and work out an elaborate plan to commit a heinous crime, those cannot be said to be kids anymore. When kids habitually commit crimes, they should lose the protection of the juvenile justice system. And when kids commit crimes for fun, they should be tried as adults. The juvenile justice system in Uganda, unfortunately, ensures that a kid’s journey up to 18 years is a honeymoon under which they get away with every sin – including murder. That is impunity!
A perfect example is that Ugandan kids in many places have a habit of destroying entire schools because they are angry – usually over minor issues. In a matter of minutes, a local economy is destroyed because a handful of kids are in a bad mood. Schools that their parents, put together, cannot rebuild. Most times they go scot free.
It is time to hold kids accountable for crimes which even adults would never think of committing. Let’s end the silly honeymoon!
Mr Tegulle is an advocate of the High Court of Uganda [email protected]
