[1995] UGHC 59

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT TORORO

NO. 22/94

Lb ... PROSECUTOR

OBDO SlnVjiR ACCUSEDI

THE HONOURABLE MR, JUSTICE EfS, LUGAYIZI

## U D G M E N T

The accused in alias SADDAM was on the 27th day of February^M 1995/ pr^jz duced before. th:Ls Honourable court for the hearing of his casx? Cure that on village, ^j ⁿ ho had sexual interco . TYING eighteen years of age. this- case x-dio is called QBDO . SILVER the 21st day of May, 1993? at Bison Magurxa!| • jlj'-? ^|! HELLLNy a girl under

Before the accused was arr; .gp.ed^z Mr liegoye who. rep\* resented him on a State brief raised an objection in respect of the said Indictment

of religion The substance of his zwels that\*' in his via^ section 123 (I) of the Penal Code Act (which created the offence referred to in this Indictment) violated Article, ^o and 16 of the 1967 Constitution of Uganda on the basis

his view above on the argument that while Moslems could marry on Moslem girls of the age of ¹³ years (if the parents If, I understood I'-ir Wegoye correctly, he based both sides consented) and stayed safe from-the wrath |df^j , section 123(I) of the Penal /ode Act, his client who was a Roman Catholic and whose religion permitted him to marry at the age of 1⁵ years cannot freely do so at that age or any other, below IG years. This is so, because if he did,

he would have to marry a girl older than himself, that is to say, of the age of I3 years or above, if he was to escape the rigours of the law under section 123(1) of the Penal Code Act.

He submitted that as a result of the above discrimination, his client cannot freely practice his religion.

Mr. Wegoye therefore urged this Honourable court not to try the accused in this case, but instead refer his case to a constitutional court under Article 87 of the 1967 Constitution with a view to having the above conflict resolved.

On his part, Mr. Khaukha (RSSA/Tororo) who appeared on behalf of the State submitted that there was no sistantial matter of law raised by Mr. Wegoye to require reference to a Constitutional Court under Article 87 of the 1957 Constitution,

In his view, Mr. Wegove was simply mixing up the Bible, the Koran and the law !

Having attentively listened to both counsel's arguments above, I over-ruled Mr. Wegoye's objection and ordered that the hearing of this case should proceed as earlier planned.

However, at that time, I did not give my reasons for so doing, but promised that $^\mathrm{I}$ would do so, in the course of my judgment; and below are my reasons.

First of all, it is clear from the reading of Articles 8 and I6 of the 1967 Constitution that the rights thereunder are not absolute. They are qualified.

Like Mr. Khaukha therefore, I believe section I23(I) of the Penal Code Act was enacated with those qualifications in mind (See particularly Clauses 5 and 4 of the said Articles respectively).

Secondly, again when you read section $I23(I)$ of the Penal Code Act, it is glaringly clear that that section. is of general application to all men in Uganda, Moslems, Catholic, etc. alike.

Consequently, if any individual (Moslem, Catholic, etc) presently ventured to marry a girl under the age of IC years, and subsequently had sexual intercourse with her (no matter whether the parents on both sides earlier consented to such a marriage) that person would commit the offence of defilement as defined under section $I23(I)$ of the Penal Code Act, and would as a result be open to prosecution in respect thereof.

If, the above is so, then where is the apparent discrimination which Mr. Wegoye tried to convince court existed ? $\cdots \quad \cdots \quad \cdots \quad \cdots \quad \cdots$

Before I move nn, perhaps it would be appropriate to mention here, that I deliberately did not discuss item 4 of the Second Schedule to Statute No. I of 1988, which Mr. Magaze also complained about in respect of the above matter. This was so, because I did not find it relevant to the above issue which in my view was restricted to section I23(I) of the Penal Code Act and Articles $\&$ & I6 of the 1967 Constitution.

Be that as it may, when the Indictment was finally read to the accused, he denied it, whereupon the prosecution called four witnesses in a bid to prove its case against the accused.

Those called in the above respect were as follows: Atyang Hellen (PWI); Justice Apallat (PW2); Adonia Onyango Ogambo (PW3); and Dr. Abner Vesuvius Tagoola (PW4).

In his defence the accused made an unsworm statement: and called no witnesses.

The prosecution case as laid out by the State's witnesses above, was briefly as follows: That PWI a young girl aged 15 years (at the time of hearing this case) was on the 21st of May, 1993, left by her sister called Margaret Amojong to care-take her one roomed residence (popularly known as 'Muzigo') at Bison Maguria village, in Tororo district.

car The above residence was part of a collection of such rooms numbering between 5 and IO which were all together in that place.

While PWI remained in the said residence by herself on the night in issue, the rest of the residences referred to above were occupied by a mixture of male and female residents. The side of the set of the set of the set

The above aside, the said residences or "Mizigo" were situated in a locality where a native brew called "malwa" was sold; and the customers thereof were also a mixture of males and females.

In fact, PWI's sister (Margaret Amojong) had been a malwa sellor in that place and had sold her said business to the accused. That was done before she left PWI behind and went to the village.

As a result of instructions left by the said sister, PWI did not lock the door to their residence above, on the night in issue. This was because the accused who now operated the malwa business in the compound of the above residence was supposed to bring chairs into PWI's residence after the malwa drinkers had retired to their respective homes that night.

📰 🐩 PWI went to bed rather early that night; and that was $\frac{1}{2}$ a native lamp called "tadooba" was burning inside PWI's residence, and she was able to recognize the accused.

PWI then slept, but at around mid-night, the accused returned. The said lamp was still burning. As the accused moved about in the room, he knocked a bench which made noise. That noise-woke up PWI and she gaw the accused again. Soon after the above events, the accused extinguished the tadooba. He then moved to the bed where PWI was lying. removed her under-pants and had sexual intercourse with her PWI in turn made an alarm.

The accused instantly reacted by running away from the scene of crime.

Since nobody answered PWI's alarm, she proceeded to PVI2's place of residence which was about 60 - 70 metres away. She was in tears when she called PW2 and asked her to open the dcor for her.

PW2 complied, after which PWI explained to her that the accused had just had sexual intercourse with her.

The above two girls were later joined by another one called Beatrice who was one of their neighbours. It was then decided that PWI would go back to her residence lock herself in and sleep until the following morning when her matters would be reported to the authorities.

As a result of the above decision therefore, the said two girls escorted PWI back to her home. PW2 entered the said residence and lit a candle which was the only means of lighting in that place at the time. The two girls then left PWI behind and went back to their respective places of residence to sleep.

Early the following morning. PW2 went to look for the accused at his home which was about 50-70 metres away from RMI's home. At that time; the accused was not at home,

PWI and PW2 then went to PW3's home. The latter was 4. the RCI chairman of the area. PMI reported to him that..

$\cdots \cdots 16$

while she was asleep the previous evening, the accused had sexual intercourse with her.

According to PW3, PWI then continued to say that she knew that it was the accused who was responsible for the crime in issue because the accused was supposed to work in their residence that night.

After looking for the accused v/ithout success that morning, PW3 gave the two. girls a letter (Exh IJPIV) to take to Tororo Police Station, The said girls did so; -and the accused was arrested and detained that same day in respect of the offence in issue.

The above apart, as a result of a police request made under PF3 exhibited herein as (Exh\* ,BP2n), PW4 a Government doctor, working for Tororo Government hospital examined PWI. J-hat examination took place on 23rd May, 1993.

The results of PW41© exaniiixation abov-e were, ¹ ⁿ ter alia, that PWI, who was ¹³ years of ago, had a raptured hymen, which meant that there was some form of penetration of her sexual -organ ^o

PW4 was also of the view that the above injury had been occasioned by a ⁿpenial shaft" ie. a male sexual organ at least more than ²⁴ hours before the said examination, but not very much beyond the ²⁴ hours time limit. That was so, because such injuries healed vorp fast, parti cularly in cases involving children.

The said doctor also found that PWI had a discharge from her private parts\* This was a sexually transmitted disease called ⁿmonilia7\

At the end of the above evidence, the prosecution closed its case. I subsequently ruled that ^a prima facie case had been made out against the accused requiring him to defond-Wmself, but I reserved my reasons for so doing, until now. These arc my reasons:

/n

At the time I made the above ruling, I was of the view that the evidence of PWI, PW2, PW3 and PW4, had satified the test laid down in R. T. Bhatt v R (1967) E. A. P 332 concerning what a prima facie case is.

The above evidence taken together, had implicated the accused with the offence in issue; and so I felt it was necessary for him to come and at least say something in his defence before the final decision was pronouced by this Honourable Court based on the evidence as a whole.

After the above ruling, I explained to the accused his rights under section $7I(2)$ of the T. I. D.

The accused chose to make an unsworn statment in which he denied having committed the offence in issue.

He explained that although it was true that he returned chairs to PWI's residence on the night in issue. he did so, at around 9.00 pm. He then went away. He did not come back to that place that night.

The accused denied that he was the one who committed the offence in issue against PWI at mid-night on the night $2250$ in issue.

He then went on to explain that the following morning, he left home early and went to look for malwa to sell, He did not come to know of what had befallen PWI the previous evening, until he heard it from the neighbours on his return after looking for the malwa as pointed out above.

The accused also told court that he was arrested on 23rd May, 1993, and taken to Tororo Police Station and later on te hospital where he was asked a few questions.

He called no witnesses.

In his final submissions, Mr Wegoye argued that the prosecution had failed to prove its case against the accused beyond reasonable doubt. Apart from complaining that the prosecution had presented two versions of the events in issue (that is to say, one version showing that the offence in issue was committed at $\mathcal{E}.00$ pm on the material day. and the second one showing that the said offence was committed at mid-night of the same day) Mr Wegoye also pointed out that the evidence of identification of the accused (ie. PWI's evidence) was not water - tight. He argued that the above was particularly so, when one considered that it was not quite clear from that evidence whether PMI actually saw the accused at the time in issue or, that she simply deduced that it must have been the accused who committed that offence against her, since he was the one supposed to return chairs to her residence or the night in issue.

Because of the above uncertainity. Mr Negoye submitted that his client should be given the benefit of doubt and acquitted.

Mr Khaukha did not agree with the above submissions, the was of the view that apart from the fact that all the other ingredients of the offence in issue had been proved, PWI's evidence of identification was good. According to Mr. Khaukha, PMI had seen the accused, just before the offence in issue was committed, by means of tadooba light. She knew the accused who was a neighbour doing business in close bouch with PWI's family (ie using their chairs).

In that respect therefore, Mr. Khaukha urged court to $\Delta$ find the accused guilty of the offence in issue and convict him accordingly.

Before much of what is recorded above transpired, one of the two assessors in this case fell sick; and it appeared that it was unlikely that he would return quickly to join us in these proceedings.

$\sqrt{ }$

- As a result of the above therefore, Court was moved to dispense with his attendance under section 67 of the T. I. D; which accordingly ordered.

Consequently. I summed up to only one assessor in this case, I explained to him that the burden of proof in criminal cases lay upon the prosecution and never shifted to the accused even in a case like this one where the accused set up the defence of an alibi (See Woolington v DPP (1935) A. C. P. 462; Uganda v Ssetumba Richard Cm. Session case No. 152/91; Leonard Antseth v. R (1963) R. 206; and Sckitoleko v Uganda (1967) E. A. $53I$ )

I also pointed out to the above assessor that the weight of evic nee required in Criminal cases was proof "beyond rease able doubt," and nothing less (See Woolmington v DPP - Supra)

In order for the prosecution to succeed in proving the offence in issue against the accused, it would have to establish the following things,

- (a) that a male assailant had sexual intercourse with the complainant (PWI) on the night in issue; - $(b)$ that at the said time, the complainant (PWI) was below the age of 18 years; - (c) that in fact, the accused was the male assailant who had sexual intercourse with the victim on the nigh in issue.

I will now discuss the above ingredients in the or they are presented above.

As far as the first ingredient above, is concerned, it is important first of all to know that in law "sexual intercourse" is established when it is shown that the complainant's sexual organ was penetrated by the assailant's sexual organ at the material time of the offence. However, once there is penetration, it does not matter how slight

such ..pan^trration wa.s.<..\_J. Sgp, Halsbury^s Laws of... England (3rd,EdU Vol«. .10. pg«.. ll&E. KglagraBh Plead>X3»..^i^ciico^anjl,JPractico .(jSth-^Ed) at ^pg. 1124 paragraph 2^72),

In the above respect; the prosecution in this case called the evidence of PWI (the complainant) who testified that on the night in issue, a male assailant had sexual intercourse with her\*

However, the above being the evidence of the complainant, I warned the assessor present, and I also do hereby warn myself now, that it was necessary to bo cautious about such evidence\* This was particularly\* so, since in cases of this nature (sexual offences) •there was always the danger of acting on Tclgnod evidence of a complainant \*

Consequently, I advised the said assessor and I do hereby advise myself now that, as a matter of practice, before that evidence can be acted upon, it must either,

- (a) be corroborated by some other independent - evidence; or - (b) verified that in ovei'y way, it is the truth\* (See Chila v ^R (1967) E\*A> 722)

I.was able to find the necessary corroboration for that part of PWI's story in the evidence of PW4\*

PW4 was the doctor who examined PWI an the 2Jrd of May^ 1993» The -said doctor -(a Government doctor working for Tororo Government hospital) testified before this Honourable Court that when he examined} ini on the above day, ho four. ;finter alio., that she had ^a ^I raptured hymen, which meant that there was some form of penetration of her sexual organ and also a sexueJLly transmitted disease called t:monilia^G\*

PW4 believed that although the events that led to the injury in issue may have occurred more than 24 hours before the above examination, the said injury was recent• It could

not have been sustained by PWI very much loiter outside the 24 hours time limit\* This was so, because injuries of such a nature healed very fast particularly in cases involving children⁴

finally, PW4 was also of the view that the said injury vzas caused by a "penial shaft" that is to say, a male sexual organ#

All the above evidence was neither contradicted nor shaken in cross—e^aardiiation. in fact, Mr Wegoye pointed ; pij out in his ima.1 sutrAi-saions- chat they wei^c iiou concosviiig the above ingredient.

I am therefore willing to find as a fact, that a mailelj| ⁱ ; ¹ assailant had seseual intercourse with the complainant ! ,| ^| ;i (io PvJI) on the night in issue.

*i\s* far as the second ingredient above is concerned, PVJI testified that at the time of the hearing this case, she was 1⁵ years of ago.

The above fact was also confirmed by PW4 (the doctor) who examined her soon after the attack in issue, and found, among other tilings, that she was ¹³ years of ago I then" H • ; •!

Again;the above evidence was neither contradicted nor shaken in any way during cross-examination\* Indeed, . .ji • Mr Wogoye at the time of his final submissions again ^| . ^j | submitted that they wore not contesting the above ingredient

As ^a result of all the above, I am therefore willing to find as a fact that at the time of the offence in issue, PWI was below the age of I<3 years.

As far as the last ingredient above is concerned, PWI testified before this Honourable court that on the night in issue, sho wunc co bud early at around <3.00 pm.

The accused then came to her residence shortly after-:¹¹ wards and brought in some chairs. At that time, a native : lamp called "tadooba" was burning inside the said residence,

The accused went away on the above occasion, but he returned later at mid-night. This time he found PWI asleep. However, PWI woke up because when the accused knocked a bench, it made noise. She was again able to see the accused and recognize him since the said tadcobe was still burning.

At this point, the accused blew out the said tadooba. He then took off PMI's under-pants and had sexual intercourse with her.

PVM made an alarm, and the accused reacted by running away from the scene of crime.

I warmed the assessors, and I do hereby warm myself now, that the above being evidence of a single witness who identified the accused in difficult circumstances (that is to say, at night; when (according to PWI) she had just woken up from sleep; and the only means of lighting available then having been poor ie, tadooba, which was in any case extinguished before the actual offence was committed against her) there was the danger that PVI might have been mistaken in her identification of the accused.

As a result therefore, it would be necessary (as a matter of practice) before the above evidence was acted upon,

- (a) either to find corroboration for it in some other independent evidence; or - (b) to ensure that in every way, that evidence was the truth.

(See Roria v Republic $[1967]$ E. A. 583)

I must first of all confess that although I tried my best to look for corroboration as for as that part of PWI's evidence was concerned, I failed to find it anywhere on record.

(Perhaps if the prosecution had pursued the results of the accused's medical examination when he was taken to hospital soon after his arrest, and found that such results agreed with PWL's finding on the S. T. he found with PWI, such results

could have provided corroboration for PWI's evidence of identification)

Secondly, I must also say that, although the accused was well known to PWI, before the incident in issue, and that, PWI had seen him a few hours before, and that there was indeed some light (though poor) which light was extinguished just before the incident in issue, the fact that PWI told PW3 this the offence in issue was committed while she was asleep and that she had known that it was the accused who was responsible for it simply because the accused worked in the residence in issue that night, leaves me in some doubt concerning whether PWI correctly identified her assailant on the night in issue.

The above doubt is further aggravated, in my view, by the fact that the prosecution did not also exclude the possibility of some other male having committed the said offence against PWI on the night in issue.

Indeed, it is clear from the evidence on record, that such a possibility existed. For example, according to PWIAS and PW2's evidence, the residence in issue was situated in a "malwa" selling area which was frequented by a mixture of male and female customers.

Further, the said residence was also part of a collection of such residences / "mizigo" occupied at the time, by a mixture of male and female residents.

In the above circumstances therefore, it becomes obvious that nothing could have prevented any one of those males listed above from stealthily going into PWI's residence on the the night in issue, and doing whatever he pleased against the innocent girl. This was particularly so, since the door to her residence was not locked before the incident in issue

With the above possibility in mind, I find it difficult to say that in every way or that in all the circumstances of this case, PWI's evidence of identification was the truth.

The accused's defence was an alibi which he had no duty to prove (Seo Aniseth. y ^R -Supra- and ^ekitoleko y Uganda .-Supra-) \*

Unfortunately, the prosecution neither disproved the above alibi by producing direct evidence to show that it was ^a lie, nor did it, in view of the doubtful nature of PWI's evidence of identification, destroy the said alibi by successfully placing the accused at the scene of crime at the material time. (See Ara scth v^c ^R -Supra-; and S^:itoleko y JJg^nda -Supra-) ,

In the circumstances, I am willing to give the accused the benefit of doubt in this case.

Accordingly, I would (in disagreement with the assessor's opinion above) acquit the accused and order for his immediate release, unless, ha is being held on some other Jawful charges-,

E. S LUGAYIZI

JUDGE 15/3/95

Road buforey At: Mr\* Khaukha (RSSA) for the State Mr\* Wegoye for Accd Accd present Mr\* Wandera C/clerk

Mr\* Oburu / Interpreter The Assessor present

^z'/iZ ^S'

E. S. LUGAHZI

JUDGE 15/3/95