Women and Justice: Keywords

Domestic Case Law

Act on the Prevention of Spousal Violence and the Protection of Victims, etc. (Act No. 31 of 2001) (2001)

Domestic and intimate partner violence, Dowry-related violence

The Act on the Prevention of Spousal Violence and the Protection of Victims etc. (the “Act”) was enacted to prevent spousal violence. The Act aims to protect victims by establishing a system for notification, counseling, protection and support for self-reliance following an incident of spousal violence. The Act provides that the court shall, upon a petition from the victim, issue a restraining order, exclusion order and prohibition of telephone contact order (collectively, a “Protection Order”) where a victim is highly likely to experience serious psychological or bodily harm due to the actions of his or her spouse or domestic partner. The Act does not cover partners who are in a relationship but live separately. To ensure the effectiveness of the Protection Order, violations of the Act include imprisonment with work or fines.  Furthermore, the Act requires that citizens who detect spousal violence make efforts to a Spousal Violence Counseling and Support Center, temporary protection, support worker or a police officer. 



2010 (A) No. 2011 Supreme Court (2012)

Gender-based violence in general

The defendant was accused of taking and imprisoning four young women in either the guestroom of a hotel or in the defendant’s home. The victims suffered from post-traumatic stress disorder (PTSD) as a result of the imprisonment. One of the key issues in the case was whether the defendant’s act constituted the crime of Confinement Causing Injury, or only the crime of Confinement. The defendant argued that a psychiatric condition, such as PTSD, should not be regarded as an “injury” under the Criminal Code. The District Court and the High Court dismissed the defendant’s argument, and the Supreme Court affirmed, holding that if the defendant illegally imprisoned the victim and the victim developed continuous and characteristic PTSD symptoms as a result of the imprisonment, the victim’s PTSD could constitute an “injury” under the Criminal Code. Therefore, the defendant’s act constituted Confinement Causing Injury. This was the first Supreme Court precedent which found that a purely psychiatric condition which was not accompanied by a physical manifestation could fall within the meaning of “injury.”



Sharma & Another v. Uganda Supreme Court at Mengo (2002)

Domestic and intimate partner violence

The appellants are brothers appealing their conviction for the murder of wife of the first appellant, Kooky Sharma.  The first Appellant and the deceased lived in a two-family building.  On the night of the murder, their neighbors heard two male voices and a woman crying “for a long time” inside the first appellant’s home.  The next day, the local council chairman learned of the victim’s death and visited the home.  The first appellant told him that the victim died of malaria.  The chairman was not satisfied with the explanation, noting that the victim’s clothing covered her entire body except for her face, and he prevented the first Appellant from immediately cremating the victim.  After the police examined the deceased’s body and found bruising, they opened a murder investigation and returned to search the first Appellant’s home.  There they found the male household cook lying unconscious in bed and badly beaten.  The police brought him to the hospital for treatment, but he disappeared by the time they returned to question him two days later and remained missing throughout the subsequent investigation and trial.  Medical examinations of the deceased conflicted with each other.  One medical examination of found bruising from electrical or acid burns and organ damage.  It found that the cause of death was “shock due to electrical burns with blunt injury.  Poison could not be ruled out.”  In another examination, the Senior Government Chemist found acaricide poison in the deceased’s liver, spleen, kidneys, and brain. The appellants appeal based on the discrepancies in the medical opinions regarding the cause of death.  The Court, explaining that judges may accept the evidence of one witness over another, held that the discrepancy was due to one doctor’s lack of experience and that the findings of the more experienced physician were reliable.  In addition, the second appellant, the deceased’s brother-in-law, also argued that the identification that led to his conviction was faulty and that the trial court failed to properly consider his alibi.  The Supreme Court found that the lower courts’ analysis seemed to require that the second appellant prove his alibi rather than require that the prosecution disprove it and so upheld the second appellant’s appeal.  The Court also expressed two grievances about the proceedings at the trial court.  The Court’s first complaint was that the defendants did not give sworn testimony but improperly were allowed to make unsworn statements guided by their attorneys.  The Court also reprimanded the attorneys for raising too many objections during trial and bogging down the proceedings.



Sabwe v. Uganda Supreme Court at Mengo (2010)

Statutory rape or defilement

Appellant was convicted of defilement of a girl less than 18 years old and was sentenced to 12 years imprisonment. Trial testimony established that while the 13-year-old girl and her younger sister were fetching water at a well, appellant, disguised as a ghost, ordered the two to remove their dresses, blindfolded them, and led them through a swamp to some bush where he had sexual intercourse with the older sister. He then left the sisters in the bush overnight, and the sisters’ father was unable to find them. Appellant then went to the father’s house and told him that he could use his witchcraft powers to find the sisters if the father paid him two goats and two chickens. Upon payment, appellant went back to the brush and brought the sisters to his home, claiming that they needed treatment. While at appellant’s home, the older sister told her father that appellant had raped her. At trial, the court rejected appellant’s defense that a ghost had abducted the sisters and he was merely using his witchcraft powers to help find the girls. Instead, the court relied on the sisters’ testimony, who claimed that they recognized appellant’s voice. The Supreme Court upheld the conviction and sentence. First, the court found that appellant lived only a quarter mile away from the sisters and used to come to their home and speak to their father, thus supporting the assertion that the sisters were able to identify appellant through voice recognition. Second, the court found that appellant’s witchcraft defense could not be reasonably believed and that the fact that he immediately located the sisters upon payment supported the inference that he was the one who brought them there.



Mugasa v. Uganda Court of Appeal at Kampala (2010)

Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a baby girl and was sentenced to 17 years imprisonment. Appellant was a relative of the child and was known as a teacher of Christianity. Appellant requested a more lenient sentence of 10 years. The Court of Appeals ruled against Appellant and increased his sentence to 25 years, citing the policy consideration that, despite the fact that defilement can be punishable by death, individuals still continue to defile babies. Thus, the court used this case as an opportunity to send a message to society that “violating the rights of child females must stop.”



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.



Uganda v. Okiring High Court at Mbale (2011)

Sexual violence and rape

The complainant was carrying a bag of maize on the back of her bicycle.  When the bag fell off, the defendant and two of his colleagues offered to help.  Two then raped her and the third stole her bicycle.  They fled when a friend of the complainant came up the road on his motorcycle.  The victim recognized her attackers and identified them to the police.  She also went to the hospital for a medical examination.  The defendant denied the charges and claimed never to have seen the victim before court proceedings began.  The trial court found credible the complainant and the prosecution’s other corroborating witnesses, which included the complainant's male friend who found her immediately after the rapes, local council members, and police.  The Court made clear that the lack of medical evidence was not dispositive.  As a first time offender who had served over three years awaiting trial, the Court sentenced the defendant to an additional 18 months imprisonment.



Kalibobo v. Uganda Court of Appeal at Kampala (2001)

Gender-based violence in general, Sexual violence and rape

The trial court sentenced the 25-year-old Appellant to 17 years in prison after finding him guilty of raping a 70-year-old widow from a neighboring village.  The trial court rejected the defense that he was not in her village at the time of the rape.  The trial court found that in November 1998 the Appellant broke into the home of the victim, who confronted him with a panga (machete).  While raping her after disarming her, the victim called out and the Appellant, worried about being caught, fled with her panga.  The police found the panga in his home the next day and he was arrested.  The Appellant contested his sentence, arguing that it was manifestly harsh because he has a wife, two children, and two young brothers to care for.  The State contended that the sentence was appropriate because of the victim’s age and family circumstances.  The standard for appellate court interference is a sentence that is “manifestly excessive or low in view of the circumstances of the case.”  The Court noted that the crime of rape, particularly the rape of “grandmothers,” is prevalent in the area and very serious.  The Court held “[t]he appellant raped an old lady.  That was bad.  However, considering all the circumstances of the case, we think that a sentence of 17 years imprisonment was manifestly so excessive as to cause a miscarriage of justice” and reduced the sentence to seven years.  



Uganda v. Kamuhanda High Court at Fort Portal (2014)

Domestic and intimate partner violence

The accused was charged with murdering his father.  The accused’s mother testified that her husband, the deceased, repeatedly physically abused his wife and children.  After a day of drinking, the deceased chased his wife and children out of the house.  The deceased’s wife went to see her older son, Muhwezi.  Muhwezi took his mother to the local council chairman, who took her to the police.  After the police refused to do anything, the deceased’s wife and children spent the night at the local council chairman’s home.  The deceased was found dead in the family home the next morning.  Muhwezi confessed that he argued with his father and killed him in self-defense.  The prosecutor requested at least 40 years imprisonment, but the Court, citing researched on the effects of long-term domestic violence, sentenced the accused to two years imprisonment.



Uganda v. Kennedy High Court at Nakawa (2014)

Domestic and intimate partner violence

The accused pleaded not guilty to the charge of murdering his wife after an hours-long fight.  Medical evidence showed that the victim died of blunt force trauma and “increased incranial pressure.”  Family members and friends testified to witnesses numerous instances of the accused committed violence against the victim.  Explaining that domestic violence is one of the most pressing societal problems in Uganda today, the judge sentenced the defendant to 30 years imprisonment.



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.



Wanasolo v. Uganda High Court at Mbale (2015)

Sexual violence and rape, Statutory rape or defilement

Appellant, a school librarian, was accused of multiple instances of indecent assault, rape, and sodomy by several students.  At least one student accused the appellant of “grooming” him for homosexuality.  On appeal, the Court found that the trial court erred by dismissing the appellant’s evidence before he presented it, refusing to let him call witnesses, and allowing her biases to interfere with the appellant's right to a fair trial.  The High Court overturned the verdict and set aside the sentence.



Legislation

Penal Code (Act No. 45 of 1907) (2007)

Sexual violence and rape, Trafficking in persons

The Penal Code (the “Code”) covers Japanese criminal law and sentencing.  The relevant provisions with respect to gender justice issues in the Code are Rape, Gang Rape, Forcible Indecency, and Inducement to Promiscuous Intercourse.  Rape was initially classified as a crime only involving female victims, but was amended to include men in 2017. The Code states that a person who commits one of more of the listed crimes shall be punished by imprisonment with work for life, or for a definite term corresponding to the gravity of a crime.  Further, based on the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime” adopted by the United Nations, the Code was amended in 2005 to include the crime of Human Trafficking. Under the amendment, selling or purchasing a human is a crime, with the criminal punishment being more severe in cases with the purpose of profit, indecency or marriage.