Uganda v Akello (Criminal Session 681 of 2022) [2024] UGHCCRD 47 (12 June 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL DIVISION CRIMINAL SESSION CASE NO.681 OF 2022 UGANDA-----------------------------------

VERSUS

AKELLO LYDIA------------------------------------BEFORE HON: JUSTICE ISAAC MUWATA JUDGEMENT

The accused person is charged with 14 counts of the offence of aggravated trafficking in Persons contrary to section $3(1)(a)$ and $4(a)$ of the Prevention in trafficking of Persons Act, 2009.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2019 and 2022 received and harbored MAWEJJE PASCAL a juvenile aged 12 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2016 and 2022 received and harbored NGOROKO EMMANUEL a juvenile aged 15 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored LOCHORO a juvenile aged 12 years,

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being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2018 and 2022 received and harbored AKIDING ROSE a juvenile aged 13 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored GGALINDA MARGRET a juvenile aged 13 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored ANGOLI SIMON a juvenile aged 10 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored KASASIRA PAUL a juvenile aged 11 years, being a person of authority or control over them and by means

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of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2018 and 2022 received and harbored NAYITI RUTH a juvenile aged 16 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored LOMOKOLI PATRICK a juvenile aged 11 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored KODET EMMANUEL a juvenile aged 16 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child labour.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored EJANGAT WILSON a juvenile aged 10 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child labor.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored NGANDA FLORENCE a juvenile aged 12 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

It is alleged by the prosecution that the accused person and others still at large while at Shalom Akenna Fellowship Children's Home in Kasongo Village Buwaya, Kasanje Sub county, Wakiso District between the year 2017 and 2022 received and harbored ELYAMA LYDIA a juvenile aged 12 years, being a person of authority or control over them and by means of deception, abuse of power or position of vulnerability for purposes of financial gains and child abuse.

Representation

Counsel Geoffrey Sselwanga appeared for the accused while State Attorney Ainebyona Happiness appeared for the prosecution

Consideration

The burden lay on the prosecution to prove, beyond reasonable doubt, the allegations made against the accused. To achieve this, the prosecution must adduce evidence that the accused is culpable with regard to all the five ingredients that comprise the offence of aggravated trafficking in children. Short of that it would have failed to prove the case against the accused. These ingredients of the said offence are;

- 1. There should be recruiting, or transporting, or transferring, or harboring or receiving of the victim - 2. That the victim is a child. - 3. It should be done by means of deception or abuse of power or position of vulnerability of the victim;

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4. The purpose of exploitation of the victim

5. Participation of the accused in the commission of any of the acts, or means or purpose of trafficking complained of.

The prosecution called 6 witnesses

There should be recruiting, or transporting, or transferring, or harboring or receiving of the victim

There is no doubt that the accused was harboring the children, the accused was operating a children's home which had many children. A certificate of registration was tendered in court which indicated that she was licensed to operate a children's home whose duty was to take care of these children. This evidence was exhibited in court as Dexh.01 without any objection from prosecution.

That the victim is a child.

It is not in dispute that the victims were minors. Except for PW1, all the other four alleged victims were minors. Section 2(a) of the Prevention in Trafficking of Persons Act, 2009 defines a child as a person below the age of 18 years.

It should be done by means of deception or abuse of power or position of vulnerability of the victim

From the evidence of the prosecution, there is nothing to prove that the accused received or harbored the children by means of deception or abuse of power or position of vulnerability.

Infact, there is evidence on record to show that the accused person prior to receiving the victims in question, first obtained the consent of the guardians/parents of the said minors. Various consent forms in respect to the minors were exhibited in court

A case in point is a consent form of PW2 Mawejje Pascal from the probation and social welfare officer placing him with the organization run by the accused. Of all the victims who testified for the prosecution, there was evidence that consent had been obtained from their parents or guardians.

This clearly shows that the children's stay at the accused's organization was lawful and consented to by their parents.

The consent by the parents/guardians to the minors is prima facie evidence that the accused person received and harbored the children with the consent of the parents/guardians. The prosecution did not adduce any evidence to suggest otherwise.

The purpose of exploitation of the victim

Exploitation in this case may mean the act of using a person for profit, labor, sexual gratification, or some other personal or financial advantage. This exploitation often results in cruel or harmful treatment of the child, as the activities he or she may be forced to take part in can cause emotional, physical, and social problems.

There were several allegations made against the accused, PW1 stated that the children complained that the accused forced them to fetch water in the night, PW2 a minor stated he was beaten while PW2 stated that at times the beating was for a reason. Most of the alleged victims specifically PW3, PW4, PW6 stated that the accused beat them but it was for disciplinary reasons.

In her defense, the accused stated that she treated the children just like any parent and at times punished them for the mistakes they did. She stated that she did this with love with the sole intention of instilling discipline in them. Even for the fetching of water, the accused stated that this was during the dry season where it required that the children fetched water for their own use. I find nothing exploitative with that especially if it's for their own good.

In view of the above, and from the demeanor of the accused person, there was no bad motive with regard to correcting the children whenever they did wrong since she also admitted to the same. Her explanation to that effect was purely based on her experience in dealing with stubborn children.

The prosecution failed to prove that the accused's actions were calculated to result into the cruel or harmful treatment of the child which in turn affects their emotional, physical, and social wellbeing. This was not proved. Infact some of the prosecution witnesses confirmed that the accused person was loving and caring and never caused any hardship to them.

Participation of the accused in the commission of any of the acts.

The question of participation is rendered nugatory having found that the prosecution failed to prove that the alleged victims were received, harbored, by means of deception for purposes of exploitation. The accused adduced evidence that she operated a licensed Children Home and the children were harbored and received with the consent of their parents/guardians making their stay at the accused's place lawful.

Accordingly, I find that the prosecution failed to prove its case beyond reasonable doubt and I hereby acquit the accused person on each of the counts as charged.

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I so find.

Judge.

12/06/2024