aoe ene THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA. CRIMINAL APPEAL NO,0007 OF 2023 (Arising out of Crim. Case No.61 OF 2022) KAFTAH QUEEN ‘VERSUS UGANDA:: JUDGEMENT OF HON.LADY JUSTICE. MARGARET MUTONY! JHC. ENT OF HON. LADY JUSTICE. MARGARET MUTONY! JHC. 1. KAFTA QUEEN here in after referred to as the Appellant being dissatisfied with the sentence of Her Worship Nsenge Roseline, the Chief Magistrate, Kiira Chief Magistrates Court at Kiira, delivered on 31 January 2023 filed an appeal against the said sentence. 2. The appellant represented by Counsel Zimbe Zephaniah of M/S JS Mayanja - Nkanji & Co. Advocates alongside M/S Arinaitwe Peter & Co. Advocates filed a memorandum of Appeal in court 8" May 2023. The respondent was represented by the learned state attorney Ms. Tabaro Caroline Ahereza. Both parties filed submissions 3. The grounds of Appeal were as follows: 1. That the trial Magistrate erred in law and fact when she convicted the appellant without due legal representation leading to a miscarriage of justice. 2. The trial magistrate erred in law and fact when she granted inconsiderate and harsh sentence to the appellant. 4. Prayers on Appeal The appellant prayed that this honorable court allows the appeal and reduces the sentence,32 33 34 35 36 37 38 39 40 a 42 43 45 46 a7 48 49 50 51 52 53 55 56 57 58 39 60 61 62 63 64 The brief background of the case. The Appellant was charged with the offence of Aggravated Torture contrary to section 2 (1) (b) and 5 (a) (h) {j) (k) of the Prevention and Prohibition of Torture Act, 2012. When the appellant was arraigned before court, she out rightly pleaded guilty to the charge against her, The facts of the case were that, on the 8" day of January 2023, the victim pretty Nicole Esther was beaten by a gang of girls and one Lwanga Derick led by Kafta Queen, the appellant over allegations that she was a rumor monger who had also wanted to grab the appellant's boyfriend, the said Lwanga Derick, While the girls were beating the victim, Lwanga Derick was recording the entire ordeal on his mobile phone. The appellant and her friends went on to share the recorded videos on their social media handles, The victim with the help of the gate man left the premises later that night for her sister's home in Kawempe from where they proceeded to report the case to Kawempe Police Station on 9" January 2023. She was examined on PF3 and found to be 15 years of age with several bruises and injuries allover her body. The cause Of the injuries was blunt force objects and the injuries were classified as grievous harm. Following this police case, the appellant was arrested and charged with aggravated torture. She was examined on PF3A which must have been an oversight on the part of the Police Officer NO. 62369 D/C Nabirye Esther who also recorded the cause of her examination to be that she was a victim of Defilement. Police officers while performing their assignments should be keen on these examinations as they are vital to the courts while coming up with a decision on the matters at hand. The vital part from this police form to this decision is in Part 3 of Page 2 where the age of the appellant was stated to be 18 years. Implying that she had only recently crossed to adulthood.65 66 67 68 69 70 71 Rn 2B 74 75 76 78 79 80 a1 82 83 84 a5 86 87 89 90 on 92 93 94 95 6.Role of first Appellate court. It is trite law that the duty of the first Appellate court is to look at the proceedings and evidence on record and reappraise it afresh subjecting it to exhaustive scrutiny. It is at liberty to draw its own inferences of fact and arrive at its own independent conclusions as to whether it should maintain the decision of the lower court or there is need to vary it and or overturn it all together. The Appellate court combs the record right from the time of plea taking, taking and recording of evidence, evaluation of evidence, application of the law to the evidence and or facts, judgment, the verdict, sentencing process and the final sentence given. This role of the first Appellate court was well stated in the cases of Pandya VR [1957] E.A 33 and has been followed in the plethora of cases. It basically reevaluates the evidence bearing in mind that it did not witness the demeanor of the witnesses. 7, Resolution of the grounds. !ssue That the trial Magistrate erred in law and fact when she convicted the appellant without due legal representation leading to a miscarriage of justice. Article 28 (1) of the 1995 Constitution provides that; “In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.” (3) (e) thereof is to the effect that; “in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State” This implies that where an accused person is charged with a case that carries a maximum sentence of death or imprisonment for life, it is the duty of the court and the state, to ensure that such accused person is duly represented by an advocate. Where they cannot afford an advocate, it is the duty of the presiding court to appoint a suitable advocate on state brief to represent the accused person in the matter. KH (96 7 98 99 100 101 102 103 104 105 106 107 108 109 110 119 The appellant herein was on the 17%" of January 2023 charged with the offence of Aggravated Torture contrary to section 2 (1) (b) and 5 (a) (h) (j) (k) of the Prevention and Prohibition of Torture Act, 2012, Section 2 (1) refers; “In this Act, torture means any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other Person acting in an official or private capacity for such purposes as— (a)... (b) Punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit. Section 5 provides for circumstances aggravating torture and also prescribes the sentence there to as follows; “Notwithstanding section 4, where it Is Proved that at the time of, or immediately before, or immediately after the commission of torture the— (a)offender uses or threatens to use or used a deadly weapon; (h)victim was under the age of 18 years; (Ico (i)the act of torture is recurring; (k)offender commits any act which court considers aggravating; the offender and any other person jointly connected with the commission of an act of torture is liable, on conviction to life imprisonment. Whereas the appellant herein pleaded guilty to the charge and there was therefore no need for the prosecution summon witnesses to prove any charges against her. It is the duty of the prosecutor preferring the charge to state the facts of the case bringing out all the ingredients of the offence which when admitted by the accused forms the basis for a conviction, Where facts do not disclose the elements of the offence, court cannot convict. In the case before me, | have not found anywhere in the facts where the appellant and her friends used or threatened to use a deadly weapon or where the said act of torture here in was recurring as this was but a single occurrence. tT» «(~128 129 130 131 132 133 134 135 136 137 138 139 140 1a 142 143 144 14s 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 In as much as there was aggravated torture as per the definition of torture in Sections 2 (1) and 5, the only subsections under 5 pertaining to this case are subsections (h) and (k) of the Act, | shall now revert back to resolving the real issue in contention which is pertaining to the mandatory legal representation of the appellant at the expense of the state. Having careful read Article 28 (3) (e) of the 1995 Constitution as elaborately cited above alongside section 5 (k) of the Prevention and Prohibition of Torture Act, 2012, which prescribes the punishment for aggravated trafficking as life imprisonment, it is apparent that an accused person against whom this charge is preferred is entitled to legal ‘representation at the expense of the state which is the duty of the presiding court to enforce. It was the submission of Appellant’s counsel that the appellant neither had a private nor state brief advocate to represent her in the trial. Counsel quoted an excerpt from the judgment at Pages 6 to 7 of the record of proceedings wherein the trial Magistrate stated and | quote; “I have carefully listened to the allocutus by the prosecution side and the mitigation from the convict. | also take notice that counsel Precious Nahabwe misled court when he introduced himself as defense counsel for the accused turned convict and midway the proceedings his action seemed not to be those of a defense counsel. ...” And she went ahead to sentence the convict now appellant to a custodial sentence of 3 years, This court is puzzled as to whether the trial Chief Magistrate had not addressed her mind to the Constitutional Provisions alongside the statute upon which she based her sentence and conviction or whether she chose to ignore the legal provisions and merely condemn the appellant since she had already pleaded guilty in her court despite confirming in open court that she had no legal representation. Counsel for the respondent despite correctly addressing her mind to the legal Provisions on state representation and the record of Proceedings herein attempted to convince court that the appellant was legally represented merely because it was so stated on Page 2 of the record,161 162 163 164 165 166 167 168 169 170 san 172 173 174 175 176 177 178 179 180 181 182 183 185 186 187 188 189 190 191, 192 Had she sufficiently and carefully read the record of proceedings she would have realized that indeed, the appellant represented herself as she singularly agreed to the tendering in of the prosecution documents and even the analysis of the facts at page 4. She also personally led her own mitigation which fact was clearly observed by the Chief Magistrate as quoted above. In the case of ARINAITWE RICHARD VS UGANDA COURT OF APPEAL CRIMINAL APPEAL NO. 595 OF 2014; the Court of Appeal at page 8 of their judgment held that; Article 28 (3) (e) of the Constitution is to the effect that a person charged with an offence carrying a death sentence or imprisonment for life is entitled to legal representation either on private brief or state brief. Murder with which the appellant was charged carries a maximum sentence of death and thus falls under the provisions of Article 28 (3) (e) of the Constitution, The above provision is couched in mandatory terms. Failure of the court to ensure that an accused Berson _Is represented by legal counsel_under the above provision would invalidate the whole trial. Emphasis mine. What distinguishes the above decision from the Appeal now before this court is the fact that in this precedent, the appellant had expressly waived his right to legal representation by opting to represent himself in the case. On this, the court noted that, court cannot enforce the right onto an accused person who is not willing to have the assistance of counsel in the prosecution of his/her case. Having found as a fact that the appellant was not legally represented, the next question would be as to whether it was at her own option or the court had failed in its duty to explain to the accused Person in the case his/her right to be defended, From the record of proceedings ,it is not reflected anywhere that the accused / appellant was informed of her right to legal representation at the expense of the state or private brief. This was only realized by the trial Chief Magistrate much later who even after the fact chose to Proceed with the illegality rather than rectify the record. ie /N193 194 195 196 197 198 199 200 202 203 204 205 206 207 208 209 210 211 212 243 214 215 216 217 218 219 220 221 222 223 224 It is the duty of the judicial officer to inform an accused person of his or her constitutional right to legal representation immediately he or she Is arraigned before court whether for reading and explaining charges for cases beyond their jurisdiction or for plea taking for cases within their jurisdiction, In the case where the accused is entitlement to legal representation at the expense of the state ,explain to him or her the right and the option to get one on private brief. Where they opt for one at the expense of the state, the court assigns counsel on state brief who should be given an opportunity to discuss the case with the accused, get disclosures from the Prosecution before the trail proceeds. In case the accused opts for private brief, he or she should be given an opportunity to instruct one by granting an adjournment to enable his or her counsel to appear, Where the accused opts to represent himself or herself, it should be indicated Clearly on the record so that it is not a ground of appeal in future and court should not be faulted for violating the constitutional rights of the accused. In the instant case ,the learned Chief Magistrate failed completely to address her mind to the constitutional right of a fair trial to the accused, Her good judgment was clouded with emotions which caused her to lean towards meting out punishment and completely ignoring the strict and mandatory legal provisions Pertaining to legal representation in this case, This court also observed that on Page 5 after the Appellant on her own mitigated submitted in mitigation of her sentence, court decided to stand over the matter to hear from the victim as per the sentencing guidelines which was within the law. But she again made a grave error when in camera, those present were the magistrate, resident state Attorney, mother of victim, counsel Precious Nahabwe and her Worship Nyadoi omitting the accused/ Appellant. An accused person has a right to be Present in court throughout the trial unless his Conduct is contemptuous which not the case herein was, Much as the trial Chief Magistrate was right to consult the victim in camera in her chambers , the accused had a constitutional right to be present in chambers. She had a right to hear what the victim said in chambers. lo a 7225 226 227 228 229 230 231 232 233 234 235 236 237 239 240 24a 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 Article 28(1) of the Ugandan Constitution provides that “in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to..a public hearing before an independent and impartial court or any tribunal established by law”. The trial chief Magistrate conducted part of the hearing after the mitigation Process unconstitutional in total violation of Article 28 , Much as the law allows holding proceedings in Camera, the accused person unless by his or her conduct in the course of the trial misbehaves to warrant exclusion. which decision must be made judiciously, there is nothing in this case that warranted the exclusion of the Appellant. Court further observed that all persons must be treated equally before the law, which is a Universal right under Article 7 of the Universal Declaration of Human Rights (UDHR) Which states that “ All are equal before the law and are entitled without any discrimination to equal protection of the law “ which right is enshrined in the Ugandan Constitution under Article 21, When the open court resumed, the learned. state Attorney who had concluded her Submission in allocutus on page 5 second paragraph, was allowed to submit again On page 6 as per 2" last paragraph particularly in response to what transpired in camera in the absence of the Accused / Appellant while the accused was not allowed to respond in rejoinder to the new development. The trial Chief Magistrate went ahead to sentence the Accuse / Convict. She sentenced her to three years imprisonment. She went ahead and commented on the victim in very unkind words mentioning her name which was erroneous because victims involved in sexual promiscuity when young should not have their names published, Since court documents are public documents, mentioning them without using Pseudo names amounts to publication which is forbidden under the Children Act Cap 59 as Amended. So much as the victim had despicable conduct. She was just young at 15 years and deserved to be protected,257 258 259 260 261 262 263 264 265 266 267 268 269 270 21 272 273 274 275 276 a7 278 279 280 281 282 283 284 285 286 287 288 In view of the above extensive legal analysis on the rights of an accused and the right to a fair trial under Article 28 of the 1995 Constitution which is non derogable right of the accused and in view of the court of Appeal decision of ARINAITWE RICHARD VS UGANDA supra, | find that the failure of the court to avail the appellant with an advocate on state brief and generally failure to accord her a fair trial invalidates the whole trial including the sentence passed hereunder. Ideally | would have ordered fora retrial before another Chief Magistrate. However Section 17 of The Judicature Act empowers this court to make decisions aimed at preventing abuse of court process. Certainly violating the rights of an accused person is a grave violation of his or her right and amounts to abuse of their human rights. It is the duty of courts of law to protect and promote the respect of, and enforce human rights of Ugandan citizens. The section provides that: “(1) The High Court shall exercise general powers of supervision over magistrate’s courts, (2) With regard to its own procedures and those of the Magistrates’ Courts, the High Court shall exercise its inherent powers— {ato prevent abuse of process of the court by curtailing delays, in trials and delivery of judgement including the power to limit and discontinue delayed prosecutions; [b)to make orders for expeditious trials; {c)to ensure that substantive justice shall be administered without undue regard to technicalities.” Emphasis added. In view of the above Section and ,having found that the entire trial was invalid | have considered the whole case in totality and hold that ordering for a retrial would not meet ends of justice. It would further traumatize the victim who must have since moved on. It would not therefore occasion any injustice to the victim and the prosecution. Before taking leave of this matter, Counsel Precious Nahabwe being an officer of court and opted to mislead court is condemned for the unprofessional conduct. AThis case should be an eye opener to the judicial officer, that the office demands that the bench should be equipped with knowledge about the rights of the accused as a matter of course. | do not find it necessary to handle the other ground of Appeal unless it is for academic purposes. | am of the view that the finding herein resolves the entire Appeal In the result, the appeal is allowed, the conviction, sentence and orders of the trial court are set aside with an order that the Appellant be immediately released from custody unless held over other lawful charges. The state is free to appeal against this decision if it is not satisfied within the statutory time. Dated at Kampala this 21* day of July 2023, MARGARET MUTONYI, JHC CRIMINAL DIVISION