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Masindi, Uganda | THE INDEPENDENT | Ugandan laws don’t provide for the child to child sex offence. However, an adolescent who sexually abuses a child below their age is still liable to answer for aggravated defilement, Masindi based High Court Judge, Paul Gadenya Wolimbwa has ruled.
The ruling stems from the proceedings before the Chief Magistrates Court in Masindi district. It all started in 2014 when Julius Omirambe was arraigned before Justice Henrietta Wolayo on charges of aggravated defilement. The prosecution alleged that on July 29th 2014 at Nyabyeya village in Masindi district, Omirambe performed a sexual act with a 12-year-old girl.
The matter was fixed for trial before Justice Wolayo in Masindi High Court. But upon tendering medical documents, it was discovered that the victim was 12 years while the accused person was 17 years of age. “..Upon this discovery, the learned judge basing on section 129 A (2) of the penal code advised that this was child to child sex and recommended that the file be referred to the Chief Magistrates Court for trial of the accused person on the offence of child to child sex,” reads the judgment.
Section 129 A (2) of the penal code provides that “any person who attempts to have unlawful sexual intercourse with a girl under the age of eighteen years commits an offence and is liable to imprisonment for eighteen years, with or without corporal punishment.”
Dissatisfied with Justice Wolayo’s decision, the prosecution filed an application before Justice Paul Gadenya Wolimbwa raising two legal questions. They asked the high court to declare whether there was an offence known as child to child sex under the penal code act Cap 120 and whether the chief magistrate’s court or any other magistrate’s court has the jurisdiction to entertain the offence of aggravated defilement whenever an accused person is above 12 years of age in relation to section 129 of the Penal Code Act.
Prosecution led by Anthony Kukundakwe argued in his submission on behalf of the Directorate of the Public Prosecution-DPP that there was no offence legally known as child to child sex in the penal code. Kukundakwe argued that the principle of legality in criminal law requires that for there to be a crime, only the law can define a crime and prescribe a penalty. The prosecution further argued that Section 129 A (2) of the penal code provides procedures to adopt while charging and trying offenders in consensual defilement.
The defence team led by Harriet Ajok didn’t file its submission as directed by the Justice Paul Gadenya Wolimbwa. Now in his judgment delivered on April 14, 2021, Justice Paul Gadenya Wolimbwa notes that the Constitution provides that no person shall be charged with or convicted of a criminal offence unless the offence is defined and a penalty for it prescribed under the law.
He noted that whereas the marginal notes of section 129A of the penal code act provide for the child to child sex where the offender and victim are under12 years and should be dealt with in accordance with the child act, it doesn’t create any new offence other than the general offence of defilement under section 129 of the same act.
“This section doesn’t make a distinction between offenders who are below 18 and thus considered children or adults. What is important is that the offender whether child or adult, has had unlawful sexual intercourse with a child,” reads the judgment in part.
Adding that “In short, the law doesn’t create the offence of child to child sex. The use of phrase child to child sex in the marginal notes to section 129A of the penal code Act is therefore misleading to the extent that it creates the offence of child to child sex. … The offender in this care was therefore rightly charged with the offence of defilement,” he said.
He also ruled that since the accused person faces a charge of aggravated defilement, he can only be tried by the High court. He according directed the Chief Magistrate to immediately forward the accused’s file to the High Court for trial since the offence is capital in nature and can only be tried by the High Court.
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