Already in jail after pleading guilty on Monday to the torture of a toddler, Jolly Tumuhiirwe, the housemaid, returns to court, today, Wednesday, for sentencing.
Tumuhiirwe pleaded guilty to torture and asked for forgiveness from court, parents of Arnella Kamanzi (her victim), the nation and all the people affected by her actions. On Monday, she appeared at the City Hall court for mention of her case. According to the Torture Act, Tumuhiirwe faces up to 15 years in prison or a fine of Shs 12 million.
But some lawyers interviewed on Monday claim a conviction would be quashed by a higher court. Nicholas Opiyo said the offence of torture under section 4 of the Prevention of the Torture Act, 2012, must be read together with the definition of torture provided under section 2 of the same act.
“It cannot be taken or read in isolation. A reading of both sections reveal that an act only amounts to torture if it is administered for three specific purposes that’s obtaining informationconfession, punishment for an act committed by the victim or some other person and intimidating or coercing to do or refrain from something,” he said.
Opiyo, a former general secretary of the Uganda Law Society, said although the actions of Tumuhiirwe are inexcusable, they do not amount to torture.
“At best the acts amount to cruel, inhumane or degrading treatment or punishment under section 7 of the Prevention and Prohibition of Torture Act, 2012,” he said
Ladislaus Rwakafuuzi, the lawyer who was supposed to represent Tumuhiirwe, also argued that the torture charge was improper. He contended that the proper charge should be assault. According Rwakafuuzi, the offence of common assault carries a sentence of one year in prison.
Opiyo also argued that Tumuhiirwe’s brief trial was under circumstances she possibly did not understand since she was unrepresented.
“Not to excuse or provide any excuse for the acts for which she stands arraigned, the trial of the maid under the circumstances and under the procedures adopted or used by the court provides a fertile [ground] for procedural challenge of the process. This will deny the child and its family justice but will also visit a procedural injustice on the accused person,” he contended.
Indeed, Rwakafuuzi told The Observer that he was going to challenge in the High court the procedure adopted by City Hall Grade I Magistrate Moses Nabenda “I will appear in court on Wednesday and see what happens but we shall appeal everything in the High court since the trial was unfair and illegal… I wonder why the magistrate was in a hurry,” he said.
Rwakafuuzi who was supposed to represent Tumuhiirwe during the trial left court before proceedings could start, saying he had another matter in the High court. Opiyo said the trial must restart such that the maid is accorded proper legal representation and the charges must be explained to her in the language she understands.
“The prosecution is best aised to prosecute under section 7 rather than section 4 of the Prevention and Prohibition of Torture Act, 2012, if they want to secure a conviction. The evidence must be subjected to the scrutiny of rules of evidence,” he said.
“It must be tested against the objective rules of the evidence rather than the subjective public opinion.” Opiyo said.
By press time, Jane Okuo Kajuga, the spokesperson for the Directorate of Public Prosecutions, could not be reached for comment.
Source : The Observer