KAMPALA, UGANDA: The High Court in Kampala has set free Kafta Queen, a Tanzanian national who early this year appeared in a video beating up a 15-year-old Pretty Nicole in a fight allegedly over a man.
Kafta, a student of Trinity College Nabweru who had been sentenced to three years in jail after she pleaded guilty to aggravated torture was released on Friday after a plea by lawyers was granted by the High Court Judge Margaret Mutonyi.
Through her lawyers, Kafta appealed against the sentence reasoning that the trial magistrate erred in law and fact when she convicted her without due legal representation, leading to a miscarriage of justice- and that it was inconsiderate and harsh.
Justice Mutonyi agreed with the plea submission and ruled that whereas the appellant pleaded guilty to the charge, there was no need for the prosecution to summon witnesses to prove any charges against her.
The judge further stated that 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, I 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,” Justice Mutonyi ruled.
The Judge also agreed with the submissions of Kafta’s lawyer Zephaniah Zimbe that she neither had a private nor state brief advocate to represent her in the trial as per Article 28(3)(e) of the 1995 constitution, alongside section 5(k) of the Prevention and Prohibition of Torture Act,2012 which requires that someone facing such a charge is entitled to legal representation at the expense of the state.
“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,” Justice Mutonyi held on July 21.
The judge further held that the trial chief magistrate failed completely to address her mind to the constitutional right of a fair trial to Kafta as her judgement was clouded with emotions which caused her to lean towards meting out punishment and completely ignoring the strict mandatory legal provisions pertaining to legal representation in this case.
“Having found the trial was invalid, I 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,” Justice Mutonyi ruled.
“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,” she held.
The judge then set aside the conviction, sentence and orders of the trial court with orders of immediate release of Kafta, unless she is being held over other lawful charges.
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