National
Juvenile murdered in prison
By BETTY NDAGIRE
Posted Monday, August 24 2015 at 14:30
Posted Monday, August 24 2015 at 14:30
In Summary
An old adage goes “spare the rod and spoil the
child.” Patrick Wandera took this saying seriously when he took his
juvenile delinquent to a remand home, expecting to get back a reformed
child, but the rod in the correctional facility was so hard that it
returned his son dead.
Patrick Wandera, a resident of Masindi District
was troubled. His 14-year-old son, Innocent Kirungi, had turned into a
juvenile delinquent and was sleeping on streets and eating from
dustbins. He was worried his son would get killed because he had started
snatching people’s belongings. When he found his son, he asked police
to help refer Karungi to Ihungu Remand Home in Masindi, where he could
be rehabilitated. He did not know taking his son to Ihungu for safety,
was actually sending him to quick death. Three days later, Wandera
received a telephone call informing him that his son had been beaten to
death.
The details of his son’s death were revealed in June during the hearing of the appeal by Henry Tumusiime, who was convicted for the murder of Karungi. His appeal was before a three-man panel of Court of Appeal justices Augustine Nshimye, Remmy Kasule, and Kenneth Kakuru. Tumusiime had appealed against the 12-month probationary jail sentence he would serve at Ihungu Remand Home. Tumusiime was jointly convicted with Rose Mpairwe, a cook at Ihungu Remand Home.
Mpairwe, also a matron at the remand home, was the lead suspect in the murder, while Tumusiime, aged 17 then, was a leader of about 30 other juvenile inmates.
The Court of Appeal also found out from the proceedings of the High Court in Masindi that inmates at the remand home were routinely taken out to work in people’s gardens for pay or to get food. But the money earned from their labour would not be given to them; it would be taken by the remand home administrators.
On the fateful date of December 3, 2009, Mpairwe took the inmates, including the convict Tumusiime and the deceased Karungi to work in a person’s garden in Bwita-Katesenywa village, 6km away from the remand home. He and others had been engaged to cultivate the field of David Abitekaniza, a police officer attached to Police Training School, Kabalye.
The details of his son’s death were revealed in June during the hearing of the appeal by Henry Tumusiime, who was convicted for the murder of Karungi. His appeal was before a three-man panel of Court of Appeal justices Augustine Nshimye, Remmy Kasule, and Kenneth Kakuru. Tumusiime had appealed against the 12-month probationary jail sentence he would serve at Ihungu Remand Home. Tumusiime was jointly convicted with Rose Mpairwe, a cook at Ihungu Remand Home.
Mpairwe, also a matron at the remand home, was the lead suspect in the murder, while Tumusiime, aged 17 then, was a leader of about 30 other juvenile inmates.
The Court of Appeal also found out from the proceedings of the High Court in Masindi that inmates at the remand home were routinely taken out to work in people’s gardens for pay or to get food. But the money earned from their labour would not be given to them; it would be taken by the remand home administrators.
On the fateful date of December 3, 2009, Mpairwe took the inmates, including the convict Tumusiime and the deceased Karungi to work in a person’s garden in Bwita-Katesenywa village, 6km away from the remand home. He and others had been engaged to cultivate the field of David Abitekaniza, a police officer attached to Police Training School, Kabalye.
The killing
The deceased was apparently weak and sickly. Besides, since he was not accustomed to hard labour, he found himself lagging behind his fellow inmates during the digging. His slowness angered Mpairwe and Tumusiime, who was leader of the inmates. The duo descended on Karungi and started assaulting him. They later laid him in a ditch and buried him alive.
Karungi was rescued after a woman saw the duo covering him with soil. She raised an alarm that attracted local leaders and residents who came and extricated him from the ground. Later in the night, after the inmates had returned to the remand home, Tumusiime and Mpairwe ganged up again against Karungi and battered him afresh.
The following morning, Karungi was again forced to go with other inmates to work in the same garden. That day, he tried to escape but was arrested. He was assaulted again by the same culprits. Karungi died of injuries the following day, the third day after his admission to the remand home.
Masindi High Court resident judge Ralph Ochan, who heard the case and delivered the verdict on April 23, 2010, sentenced the lead offender Mpairwe to 10 years in jail, and referred juvenile Tumusiime to Masindi Children’s Court for sentencing. The children’s court handed Tumusiime to a 12-month probation sentence, which he served at Ihungu Remand Home. While sentencing Mpairwe, Justice Ochan held that Kirungi’s life was cut shot in the cruellest manner by people entrusted to protect him and also ordered that urgent improvements be made at the remand home.
The judge wondered how Mpairwe, who was a mother and grandmother, failed to protect the juvenile’s life before condemning the administrators for failing to employ qualified people to run the children’s remand home.
The judge ordered for appointment of qualified staff to manage Ihungu Remand Home and barred juvenile suspects from being subjected to hard labour. He ordered that all buildings in the remand home be renovated to the nationally required standards for children suspects to live in better conditions as they undergo psycho-social rehabilitation.
Tumusiime appealed against the conviction and sentence on account that the judge convicted him on insufficient evidence, which led to a miscarriage of justice for him.
When the first hearing of the appeal in the Court of Appeal started on March 12, 2013, Tumusiime was represented by Jim Allan Gash, an American lawyer, and Kato Ssekabanja, a Ugandan lawyer.
However, after the first hearing, the panel had to be reconstituted following changes in the judiciary. Initially, the panel hearing the appeal comprised Justices Steven Kavuma, Arach Amoko and Remmy Kasule. When Justice Amoko was promoted to the Supreme Court as judge, the panel was reconstituted to comprise Justices Nshimye, Kasule and Kakuru. The new panel started hearing the appeal on June 4, 2014, with Ssekabanja as the appellant’s lawyer and Betty Khisa, assistant director of public prosecutions for the state.
Ssekabanaja argued that Tumusiime had been prejudiced and denied the right to a fair trial. Ssekabanja argued that Mpairwe’s defence was inconsistent with Tumusiime’s though they were represented by the same lawyer in the case.
“For her part, Mpairwe’s interest was in transferring responsibility for the offence from herself to the appellant. Thus at the witness stand at the trial, she testified against the appellant (Tumusiime) declaring that it was the appellant who administered the punishment upon the deceased and that Mpairwe had tried to stop him,” Ssekabanja submitted at the hearing of the appeal and he argued the case of miscarriage of justice for Tumusiime.
“…the appellant’s case was that he did not participate in the punishment of the deceased on that date, but instead it was Mpairwe, who ordered the punishment, which was administered upon the deceased by four other inmates. The appellant was not permitted by his advocate to testify to rebut the evidence his very own advocate elicited from his co-accused implicating him. This created an inherent and inescapable conflict of interest between the appellant and his co-accused, since each one’s defence implicated the other having committed the offence charged. This conflict of interest rendered the advocated incapable of providing effective defence to both accused persons, what the defence counsel did at the trial was to represent Mpairwe’s interests over those of the appellant because as an adult, Mpairwe faced the potential of a much harsher sentence than did the appellant, then a minor,” he added.
Ssekabanja contended that the advocate intentionally undermined the appellant’s interest which, in turn, led to a manifest miscarriage of justice.
He said the appellant was entitled to be represented by an advocate, who would ensure that his interests were fully protected.
In reply, the state attorney Khisa submitted that no evidence had been adduced to show that there was a conflict of interest in respect of the advocate who represented both the appellant and the co-accused Mpairwe at the trial.
Khisa also stated that in any case, the trial judge did not rely on the evidence of the appellant’s co-accused to convict him for the offence charged, but rather the judge considered evidence of other independent prosecution witnesses.
The deceased was apparently weak and sickly. Besides, since he was not accustomed to hard labour, he found himself lagging behind his fellow inmates during the digging. His slowness angered Mpairwe and Tumusiime, who was leader of the inmates. The duo descended on Karungi and started assaulting him. They later laid him in a ditch and buried him alive.
Karungi was rescued after a woman saw the duo covering him with soil. She raised an alarm that attracted local leaders and residents who came and extricated him from the ground. Later in the night, after the inmates had returned to the remand home, Tumusiime and Mpairwe ganged up again against Karungi and battered him afresh.
The following morning, Karungi was again forced to go with other inmates to work in the same garden. That day, he tried to escape but was arrested. He was assaulted again by the same culprits. Karungi died of injuries the following day, the third day after his admission to the remand home.
Masindi High Court resident judge Ralph Ochan, who heard the case and delivered the verdict on April 23, 2010, sentenced the lead offender Mpairwe to 10 years in jail, and referred juvenile Tumusiime to Masindi Children’s Court for sentencing. The children’s court handed Tumusiime to a 12-month probation sentence, which he served at Ihungu Remand Home. While sentencing Mpairwe, Justice Ochan held that Kirungi’s life was cut shot in the cruellest manner by people entrusted to protect him and also ordered that urgent improvements be made at the remand home.
The judge wondered how Mpairwe, who was a mother and grandmother, failed to protect the juvenile’s life before condemning the administrators for failing to employ qualified people to run the children’s remand home.
The judge ordered for appointment of qualified staff to manage Ihungu Remand Home and barred juvenile suspects from being subjected to hard labour. He ordered that all buildings in the remand home be renovated to the nationally required standards for children suspects to live in better conditions as they undergo psycho-social rehabilitation.
Tumusiime appealed against the conviction and sentence on account that the judge convicted him on insufficient evidence, which led to a miscarriage of justice for him.
When the first hearing of the appeal in the Court of Appeal started on March 12, 2013, Tumusiime was represented by Jim Allan Gash, an American lawyer, and Kato Ssekabanja, a Ugandan lawyer.
However, after the first hearing, the panel had to be reconstituted following changes in the judiciary. Initially, the panel hearing the appeal comprised Justices Steven Kavuma, Arach Amoko and Remmy Kasule. When Justice Amoko was promoted to the Supreme Court as judge, the panel was reconstituted to comprise Justices Nshimye, Kasule and Kakuru. The new panel started hearing the appeal on June 4, 2014, with Ssekabanja as the appellant’s lawyer and Betty Khisa, assistant director of public prosecutions for the state.
Ssekabanaja argued that Tumusiime had been prejudiced and denied the right to a fair trial. Ssekabanja argued that Mpairwe’s defence was inconsistent with Tumusiime’s though they were represented by the same lawyer in the case.
“For her part, Mpairwe’s interest was in transferring responsibility for the offence from herself to the appellant. Thus at the witness stand at the trial, she testified against the appellant (Tumusiime) declaring that it was the appellant who administered the punishment upon the deceased and that Mpairwe had tried to stop him,” Ssekabanja submitted at the hearing of the appeal and he argued the case of miscarriage of justice for Tumusiime.
“…the appellant’s case was that he did not participate in the punishment of the deceased on that date, but instead it was Mpairwe, who ordered the punishment, which was administered upon the deceased by four other inmates. The appellant was not permitted by his advocate to testify to rebut the evidence his very own advocate elicited from his co-accused implicating him. This created an inherent and inescapable conflict of interest between the appellant and his co-accused, since each one’s defence implicated the other having committed the offence charged. This conflict of interest rendered the advocated incapable of providing effective defence to both accused persons, what the defence counsel did at the trial was to represent Mpairwe’s interests over those of the appellant because as an adult, Mpairwe faced the potential of a much harsher sentence than did the appellant, then a minor,” he added.
Ssekabanja contended that the advocate intentionally undermined the appellant’s interest which, in turn, led to a manifest miscarriage of justice.
He said the appellant was entitled to be represented by an advocate, who would ensure that his interests were fully protected.
In reply, the state attorney Khisa submitted that no evidence had been adduced to show that there was a conflict of interest in respect of the advocate who represented both the appellant and the co-accused Mpairwe at the trial.
Khisa also stated that in any case, the trial judge did not rely on the evidence of the appellant’s co-accused to convict him for the offence charged, but rather the judge considered evidence of other independent prosecution witnesses.
The judgement
In their judgment on June 19, Justices Nshimye, Kasule and Kakuru stated thus: “It is not in contention that, at the trial giving rise to this appeal, the same advocate, Moses Tugume, represented both the appellant and his co-accused on the state brief. It is also not in contention that the two had conflicting interests by way of their respective defences to the charge in that when Mpairwe was called upon by the advocate representing the appellant to give her defence, she testified against the appellant.
The appellant was not accorded any opportunity to cross examine the co-accused, who upon the advice of the very same advocate, had made an unsworn statement, thus being immune from cross-examination by the appellant,” the judges ruled.
“Again, the appellant, upon the advice of his advocate, opted to remain silent thereby depriving himself of the opportunity to tell his own version of events and refute the allegations made against him by his co-accused and by the other witnesses. It is not farfetched to assume that the advocate was more concerned about the case against Mpairwe than that against the appellant. As submitted by counsel for the appellant, whereas the appellant, being a minor could only get maximum sentence of three years imprisonment, his co-accused, as an adult, could face the death penalty,” the Court of Appeal judges observed.
They said it only be natural for the defending advocate to concentrate on the case of the adult co-accused so as to save her from being convicted and sentenced to death and to pay less attention to the case of the minor appellant.
“We therefore find that it was not possible, in the circumstances of this case, for the same advocate to have ably and fairy represented both the appellant and the co-accused Mpairwe without causing prejudice to the case of one of them. We find that, in this case, the appellant was not accorded a fair hearing and we so hold. The trial and conviction of the appellant contravened Articles 28 and 44 of the Constitution and was therefore a nullity. On that account, we hereby quash the conviction and set aside the sentence imposed upon the appellant by the Children’s Court, Masindi, the fact that he has already served the same sentence, we also rule out an order of a re-trial of the appellant,” the judges ruled in a joint decision.
In their judgment on June 19, Justices Nshimye, Kasule and Kakuru stated thus: “It is not in contention that, at the trial giving rise to this appeal, the same advocate, Moses Tugume, represented both the appellant and his co-accused on the state brief. It is also not in contention that the two had conflicting interests by way of their respective defences to the charge in that when Mpairwe was called upon by the advocate representing the appellant to give her defence, she testified against the appellant.
The appellant was not accorded any opportunity to cross examine the co-accused, who upon the advice of the very same advocate, had made an unsworn statement, thus being immune from cross-examination by the appellant,” the judges ruled.
“Again, the appellant, upon the advice of his advocate, opted to remain silent thereby depriving himself of the opportunity to tell his own version of events and refute the allegations made against him by his co-accused and by the other witnesses. It is not farfetched to assume that the advocate was more concerned about the case against Mpairwe than that against the appellant. As submitted by counsel for the appellant, whereas the appellant, being a minor could only get maximum sentence of three years imprisonment, his co-accused, as an adult, could face the death penalty,” the Court of Appeal judges observed.
They said it only be natural for the defending advocate to concentrate on the case of the adult co-accused so as to save her from being convicted and sentenced to death and to pay less attention to the case of the minor appellant.
“We therefore find that it was not possible, in the circumstances of this case, for the same advocate to have ably and fairy represented both the appellant and the co-accused Mpairwe without causing prejudice to the case of one of them. We find that, in this case, the appellant was not accorded a fair hearing and we so hold. The trial and conviction of the appellant contravened Articles 28 and 44 of the Constitution and was therefore a nullity. On that account, we hereby quash the conviction and set aside the sentence imposed upon the appellant by the Children’s Court, Masindi, the fact that he has already served the same sentence, we also rule out an order of a re-trial of the appellant,” the judges ruled in a joint decision.
Final Sentence
...the appellant, upon the advice of his advocate, opted to remain silent thereby depriving himself of the opportunity to tell his own version of events and refute the allegations made against him by his co-accused and by the other witnesses... the appellant was not accorded a fair hearing and we so hold... we hereby quash the conviction and set aside the sentence imposed upon the appellant by the Children’s Court
court of appeal judges
...the appellant, upon the advice of his advocate, opted to remain silent thereby depriving himself of the opportunity to tell his own version of events and refute the allegations made against him by his co-accused and by the other witnesses... the appellant was not accorded a fair hearing and we so hold... we hereby quash the conviction and set aside the sentence imposed upon the appellant by the Children’s Court
court of appeal judges
JUVENILE CRIME RATE
Crime No. of juveniles accused
Defilement 545
Theft 424
Assault 216
Break-ins 234
Robbery 56
According to the 2013 Uganda Police Crime Report, 2,240 juveniles were involved in crime, compared to 1,851 in 2012, with the highest numbers charged as indicated in the table above.
Crime No. of juveniles accused
Defilement 545
Theft 424
Assault 216
Break-ins 234
Robbery 56
According to the 2013 Uganda Police Crime Report, 2,240 juveniles were involved in crime, compared to 1,851 in 2012, with the highest numbers charged as indicated in the table above.
bndagire@ug.nationmedia.com
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