Women and Justice: Court: High Court at Kampala

Domestic Case Law

Uganda v. Seruga High Court at Kampala (2004)

Harmful traditional practices

The three defendants were indicted for the murder of Nabwire Harriet and Nakamate Gaita, an infant.  August 27, 2002, the family received an anonymous letter telling them to leave their house, which they reported to authorities.  The next night, the defendants poured petrol through the window and set the house on fire.  Defendant Seruga hired the other two defendants to burn the house because they believed they family was practicing witchcraft.  The defendants were seen together the night of the fire and heard discussing how they committed the crime afterwards.  After their arrest, the defendants confessed to working together to set the fire, which they recanted at arraignment.  The trial court found them guilty and sentenced the three to death, but vacated the second death sentences for the second victim because an execution cannot be carried out twice.

Kirungi v. Mugabe High Court at Kampala (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner requests a divorce from the respondent and money to care for the parties’ daughter, for whom the petitioner is the sole caregiver. The parties were married in July 2008 in Uganda and then moved to Woburn, Massachusetts, USA.  The respondent husband physically abused his wife, especially when intoxicated.  During the time they lived together, the respondent usually slept in the sitting room.  For three years they lived apart, but were reconciled by relatives.  During the reconciliation, the parties had a daughter.  The respondent was never involved in caring for the child and eventually left the family home to live with his mother 45 minutes away.  The petitioner returned to Uganda where she is the sole parent and provider for her daughter.  The court granted the request for a divorce on the grounds of cruelty and desertion.  The court explained that the best interests of the child control all determinations relating to children.  The court granted the petitioner custody of the daughter and $400 (USD or the USh equivalent) per month from the respondent for their daughter’s maintenance.

Tibenderana v. Al-Torki High Court at Kampala (2015)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The petitioner father filed for divorce from the respondent mother and custody of their child.  After the birth of their child in 2007, the respondent left the matrimonial home without returning.  After over two years of absence, the petitioner filed for divorce.  The two elements of desertion are the actual absence of a spouse and their intent to abandon the union.  In this case, the respondent travelled internationally with the child at the petitioner’s expense and refused requests to move to Uganda once she obtained citizenship.  In 2011, she moved back to Uganda.  In 2012, the respondent requested an Islamic divorce, which she was granted, citing problems with the government of Saudi Arabia.  After the Islamic divorce, the parties continued to cohabitate with petitioner as the sole provider for the family, but the marriage was over.  Respondent moved to the United Kingdom for the child’s education and the petitioner paid the costs.  The petitioner also complained of physical assault, which he did not report to the police to protect his reputation.  He submitted documentation of his payments for living and education expenses, their marriage, the Islamic divorce, and his unanswered inquiries to respondent about their child.  The court agreed that these facts demonstrated an irretrievably broken marriage.  Citing the Children Act, which requires courts primarily consider the best interests of the child in custody determinations, the court granted custody of the child to the petitioner because the petitioner functioned as the sole provider for the family.

Kisingiri v. Uganda High Court at Kampala (2016)

Sexual violence and rape

The appellant was convicted of having carnal knowledge of a person against the order of nature (i.e., homosexual sex acts, in this case anal sexual intercourse) in violation of section 145 of the Penal Code Act.  On appeal, appellant’s counsel emphasized the State offered no evidence of penetration, that corroboration is necessary in cases of sexual offenses, and the compromised credibility of several material prosecution witnesses, including a complainant.  Four years before the trial when he was 17 or 18, the complainant testified that he went to the Appellant’s home for a party, which never happened.  Instead, the Appellant gave the complainant a glass of wine and the complainant blacked out.  The next thing he remembered was anal bleeding and seeing the defendant entering the room.  The complainant testified that he was too ashamed to ask what happened.  The following day went to the doctor, who told the complainant that it seemed that he had been sodomized and gave him medication.  The appellate judge agreed with the trial judge that this did not amount to direct evidence of a sexual act.  Four years later in 2013, the complainant told Reverend Solomon Male about the assault after hearing him on the radio.  The police then searched the appellant’s home where they found chloroform, which the complainant was not examined for at his 2009 doctor’s appointment.  Both the trial and appellate judges noted that the fact that the complainant did not tell any of his housemates about his bleeding or assault at the time cast doubt on his account.  While medical evidence is not required for sexual assault cases, the court here was concerned that it found no evidence at all of sexual assault.  The Court found that the trial judge erred in finding that the complainant’s failure to report the assault in 2009 was “a natural reaction” as a result of shame, especially because no psychologist or behavioral specialist testified at trial.  The appellate court quashed the defendant’s conviction and sentence after finding that the prosecution failed to prove the first element of the offense, penetration, beyond a reasonable doubt.  The appellate court also mentioned a key witness’, Pastor Solomon Male’s, publication of “malicious information of sodomy” against Ugandan pastor Robert Kayanja, which is a reference to an incident in which a boy who had accused Kayanja of sodomy withdrew his accusations and said that Male and several of his colleagues paid him and other boys to accuse the minister.  In that case, Male and his clergy colleagues were convicted of conspiring to destroy Kayanja’s name and professional reputation.

Nabagesera & 3 Others v. Attorney General & Another High Court at Kampala (2014)

Gender discrimination

Members of Freedom and Roam Uganda (“FARUG”) sued the Attorney General and Minister of Ethics and Integrity Simon Lokodo for violating their constitutional rights to freedom of assembly, right to participate in peaceful civil society activity, and right to equal treatment before the law.  In February 2012, Minister Lokodo personally appeared at and ordered closed down a FARUG-hosted “project planning, advocacy, human rights, leadership, and business skills” workshop in 2012 on the grounds that the workshop was an “illegal gathering of [h]omosexuals.”  The respondents argued that Uganda Penal Code (sec. 148) prohibits homosexual acts, which includes the prohibition of direct or indirect encouragement, incitement, and conspiracy to commit the offense.  Citing the Uganda Penal Code, Constitution of Uganda, and African Charter of Human and Peoples’ Rights, the Court held that individual human rights are not absolute and may be restricted in the public interest as long as the restrictions do not amount to political persecution.  Calling the workshops “a pretext for human rights advocacy to promote homosexual acts which are prohibited by the Ugandan laws,” the Court rejected Applicants’ freedom of expression arguments because their activities constituted “offenses against morality” and “prejudicial to the public interest.”  In response to Applicants’ use of international human rights law, the Court held that Uganda’s “different laws and moral values” require different definitions and protections of the public interest than those cited in precedent from the UN, South Africa, the European Court of Human Rights, Hong Kong, etc.  The Court also rejected the suit against the Minister of Ethics and Integrity in his individual capacity because he was acting in his official capacity, meaning the Attorney General was the only proper respondent.

Uganda v. Katerega High Court at Kampala (2016)

Statutory rape or defilement

The accused pleaded not guilty to aggravated defilement for performing a sexual act with his 15-year-old daughter.  The judge found the accused guilty despite his denial because of DNA testing of the victim’s twin children, the testimony of the victim, and the testimony of a social worker.  In dicta before sentencing, the judge stated that African traditions must be upheld and American and European abhorrent practices like sodomy and homosexuality must be avoided.  The judge added that even these cultures reject incest.  Then the judge sentenced the defendant to 25 years, including four years subtracted for remand served.