“In short, the law doesn’t create the offence of child to child sex. The use of the 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.
Masindi High Court Judge Paul Gadenya made the decision.
don’t provide for the child to child sex offence, Masindi High Court Judge, Paul
Gadenya Wolimbwa has ruled. According to Justice Gadenya, an adolescent who
sexually abuses a child below their age is liable to answer for aggravated defilement.
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.
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
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
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.
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.