Defilement: Section 1291 of the PCA

The offence of defilement is provided for under S.129 of the PCA provides that

Any person who unlawfully has sexual intercourse with a girl under the age of 18 years is

guilty of an offence and is liable to suffer death.

It is this offence that is referred to as defilement of a girl under the age of 18 years. In some

jurisdictions, defilement is referred to as statutory rape.

Changes by the 1990 amendment

 In 1990 the age of minimum consent to sex was raised from 14 years to 18 years.

 The maximum punishment was raised from life imprisonment to death sentence.2

 The defence of reasonable belief that a girl was of minimum age was abolished. 3

Section 144:

Except as otherwise expressly stated, it is immaterial in the case of any offence committed

with respect to a woman or girl under a specified age, that the accused person did not know

that the woman or girl was under that age or believed that she was not under age.

It is noted that defilement shares several ingredients with rape and thus our discussion of

defilement will be limited to a discussion of elements of defilement which are not present in

rape. Principles on the ingredients common to both offences, sexual intercourse/canal

knowledge/penetration as well as the rule on corroboration, enunciated in the case law on

1
Originally Section 123

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rape are as applicable to defilement as they are to rape and will not be repeated in the

discussion to follow.

Ingredients of defilement;

The essential ingredients for a successful prosecution for defilement have been defined by

various court rulings.

In Agaya Robert V Uganda Criminal Appeal No. 18/2000 Court of Appeal stated that:

It is well settled that in order to constitute the offence of defilement, the following must be

proved:

 Sexual intercourse

 Victim’s age below 18 years

 The accused is the culprit.

In Bassita Hussein V Uganda Criminal Appeal 35/1995 the Supreme Court also laid down

the ingredients of the offence of defilement which the prosecution must prove beyond

reasonable doubt as:

 The fact of sexual intercourse

 The age of the girl victim being under 18 years.

 Participation by the accused in the alleged sexual intercourse.

Section 129 (7) defines “sexual act” to mean;

(a) the penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ;
(b) the unlawful use of any object or organ by a person on another person’s sexual organ; “sexual

organ” means a vagina or a penis.

Aiding defilement

As with the offence of rape, persons who aid someone who is actually having unlawful sexual

intercourse with a girl under the age of 18 years can be found guilty with the perpetrator. This

is a consequence of Section 19 of the PCA which deals with principal offenders.

Section 19 Principal Offenders, 19(1);

When an offence is committed, each of the following persons is deemed to have taken part in

committing the offence and to be guilty of the offence and may be charged with actually

committing it.

(a) Every person who actually does the act or makes the omission which constitutes the

offence

(b) Every person who does or omits to do any act for the purpose of enabling or aiding

another person to commit the offence

(c) Every person who aids or abets another person in committing the offence

Case Law:

Kayondo Fred and Mutagayika Silas V Uganda Criminal Appeal No. 31/1998;

The two appellants were convicted of defilement C/S 123(1) of the PCA. Kayondo Fred, the

first appellant had sexual intercourse with the complainant while the second appellant held

the complainant’s hands.

Held:
Kayondo (A1) was a principal and A2 an aider and abettor. A2 assisted A1. A2 consciously

participated in what was happening. He assisted A1 in ensuring that the complainant did not

resist A1’s sexual act. The intention of A2 in holding the hands of the complainant while A1

ravished her was to enable A1 to succeed in his act of defilement. The provisions of S.21 (b)

and (c) PCA4 apply to A2. Thus, Court found that the prosecution proved beyond reasonable

doubt that it was A1 who had sexual intercourse with the complainant while A2 aided and

abetted the defilement. Both were guilty of defilement under Section 123 of the PCA. Both

were sentenced to 7 years imprisonment.

The High Court finding and sentence were confirmed by the Court of Appeal.

Case Law:

Uganda V Mugoya Wilson Criminal Session Case No. 170/93 High Court;5

The accused was charged with defilement of two girls under the age of 18 years. He pleaded

not guilty to both counts.

Held inter alia on the matter of the burden of proof:

It is the law that an accused should never be called upon to prove his innocence.

Woolmington V DPP [1935] AC 462; Oketh Okale V R[1965]EA 555.

It is also trite law that an accused person should be convicted on the strength of the case as

established by the prosecution but not on the weaknesses of his defence: R V Israili Epuku

s/o Achietu (1934) 1 EACA 166.

Corroboration is needed on all the ingredients of the offence

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As with the case of rape, for a successful prosecution of defilement, all the ingredients of

the offence must be corroborated-the evidence of the victim is not in itself sufficient proof.

In Uganda V Rurahukayo John Criminal Session Case No. 260/97 the High Court held that

in a sexual offence the Court must find corroboration of the complainant’s testimony to all

ingredients. This corroboration is required as a matter of judicial caution and practice. It

may be adduced from direct and or circumstantial evidence.

The difference between rape and defilement

1. Marriage is not a defence

2. The age of the complainant is irrelevant

3. Consent of the girl is not a defence

Marriage is not a defence;

Uganda recognises the different types of marriages. Under the Customary Marriages

(Registration) Act6 the Law recognises marriages contracted according to the customary

practices of the parties. The law thereunder sets the minimum age of marriage for girls at 14

and for boys at 16 years.

Under the Marriage and Divorce of the Mohammedans Act 7 the law recognises marriage

consecrated according to Islamic Law. Under Islamic law a girl can marry as soon as she

starts her menstruation. It follows that a girl who starts menstruation before the age of

majority (18 years) can marry under Islamic law.

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If marriage of a girl under the age of 18 years is a valid marriage, then the husband of such a

girl would not be convicted of defilement for a man cannot defile his own wife. However,

since the promulgation of the 1995 Constitution, a man cannot contract a valid marriage

with a person under the age of 18 years. Since such a marriage would be unconstitutional

and thus illegal, sexual intercourse with a girl under the age of 18 years. Since such a

marriage would be unconstitutional and thus illegal, sexual intercourse with a girl under the

age of 18 years can never be legal.

Article 31 (1) of the 1995 Constitution states:

Men and women of 18 years and above have the right to marry and to found a family and

are entitled to equal rights in marriage, during marriage and at its dissolution.

Defining ‘unlawfulness’ in defilement

The word ‘unlawful’ appears in the definition of defilement in Section 129 of the PCA, as it

does in S.123, which defines the offence of rape.

Case Law:

Uganda V Karim Zawedde Criminal Session Case No. 551/96 High Court;

The judge pointed out the ingredients of defilement as:

 The complainant is a girl of below 18 years at the time of the offence;

 That the complainant had sexual intercourse at the material time;

 That the said sexual intercourse was unlawful; and

 That the accused was responsible for the offence.

I am of the view that once the first two ingredients above have been properly proved, it

follows that the sexual intercourse was unlawfully had; I wish to point out that I do not

subscribe to the view, which was of course not propounded in this case but I have heard

before (see Uganda V Obbo Silver Toroto Criminal Session Case No. 22/94).

In that case it was suggested by counsel for the accused that the word ‘unlawfully’ which

appears in S.123(1) PCA was purposely placed in that Section by the Legislature to protect

Muslims who have married girls under the age of 18 years. In my view, S.123(1) of the PCA

applies to all persons, regardless of their religion, tribe, etc. and that interpretation is

consistent with the provisions of Article 21 of the 1995 Constitution.

If the legislature had intended that the said section would protect a certain class of people,

it would have said so in no uncertain terms. In short, therefore in my opinion the word

‘unlawful’ appearing in S.123(1) PCA is surplusage.

In Karim Zawedde Abdu V Uganda Criminal Appeal No. 14/1998, the accused appealed

against the conviction and sentence. One of the points appealed against was the High

Court’s decision that the word ‘unlawfully’ in the section on defilement was surplusage. The

court said:

The complaint was on the interpretation of the word ‘unlawful’ in Section 123(1) of the PCA.

The Court of Appeal said inter alia:

Ground 3
The complaint was on the interpretation of the word ‘unlawful’ in Section 123(1) PCA.

Counsel submitted that sometimes defilement may not be unlawful as the offender might be

affected by evil spirits or witchcraft and has no mens rea.

Held that:

If an offender is possessed by devils or is acting under the influence of witchcraft and such

offender is believed by the trial court, such could amount to a defence of insanity according

to S.12 of the PCA. However, the actus reus of defilement contrary to Section 123 (1)

remains an unlawful act. Once a person has had sexual intercourse with a girl under the age

of 18 years, the act is per se unlawful.

Issues concerning the age of the complainant;

The essence of the law on defilement is the need to protect young girls from early sexual

activity. Proof that the girl is under the age of 18 years is thus essential for a conviction of

defilement.

Lack of knowledge of the victim’s age is no defence:

Before the 1990 amendment to the law proof by an accused person that he reasonably

believed the girl to be above the prescribed age was a complete defence to a charge of

defilement of an underage person. Since the 1990 amendment, there is no longer a

defence.

Case: Tumuhairwe Vincent V Uganda Criminal Appeal No. 29/97 Court of Appeal. The Court

of Appeal held inter alia that the fact that an accused did not know that the victim in a

defilement case was under 18 years of age is no defence.

There is no need to prove the exact age of a victim. In Uganda V Lwasa Ssempijja Criminal

Session Case No. 381/96 it was held: In defilement the prosecution need not prove the

exact age of the victim rather it must be proved that the girl was at the time of intercourse

under the age of 18 years.

CASE: Safari Innocent V Uganda Criminal Appeal No. 2/95 Supreme Court.

The appellant was convicted of defilement of a girl under 18 years. The victim was taken for

medical examination and the doctor estimated her age to be between 13 and 14 years. The

accused appealed against conviction on the following grounds:

 The prosecution failed to prove that the complainant was under 18 years.

 It was not shown that it was the appellant who defiled the complainant.

The Supreme Court held inter alia that:

the complainant’s own evidence, the evidence of her father and the medical evidence left

no doubt that she was under the age of 18 at the material time. The estimate by the doctor

was that the complainant appeared to be 13 and 14 years did not weaken the prosecution

evidence in that regard. Her father’s evidence was that she was 15 years when she was

defiled must be correct…even if she was 13 or 14 as the doctor estimated, she was still

under 18 years old nonetheless and, therefore, under 18 for purposes of the offence of

defilement under Section 123(1).

less than 18 years at the time of sexual intercourse. It need not prove the exact age of the

victim.

CASE: Katima John V Uganda Criminal Appeal No. 23/99 Court of Appeal For Uganda;

Katima was convicted of defilement under S.123(1) of the PCA. The prosecution case was

that the defilement occurred on 15th December 1992. In her evidence the complainant

stated that she was told by her father that she was born in 1977 (and was therefore 15

years at the time of the assault). On the other hand, her mother testified that the girl was

born in 1979 (and was therefore 13 years at the relevant time). The doctor who examined

the victim determined that she was 14 years. He stated in cross examination that he did not

have the machine to examine her age but used his experience.

On appeal it was argued that there was no evidence to prove that the complainant was

below the age of 18 years.

Held by Court of Appeal:

The prosecution had proved beyond reasonable doubt that the victim was under 18 years of

age. The learned judge came to the right conclusion that the complainant was under 18

years. Even if the court believed that the complainant was born either in 1979 or 1977, she

was defiled in 1995 and whichever date is taken she was definitely below 18 years. The

learned trial judge observed the complainant while she was giving evidence in court, and

formed his opinion about her age, which he was entitled to do.
Conclusion: In a defilement case, the prosecution need not prove the exact age of the

victim. All that is needed is to prove (beyond reasonable doubt) that the victim was under

the age of 18 years.

Absence of a birth certificate is not fatal to prosecution case on an indictment for

defilement.

In Uganda V Mukasa Everisto Criminal Session Case No. 22/98 the High Court held:

In the absence of a birth certificate the age of a person can be proved by any other lawful

evidence such as testimony of a close relative. It could also be established by observation

and common sense. See GRIMSLY ex parte Purser [1951]2 All ER 889.

Silence by the examining doctor as to the age of the victim not fatal to prosecution case

Case: Uganda V Kintu Charles Criminal Session Case No. 467/95 High Court;

The accused was indicted for defiling his student. The complainant testified that she was 14

years at the time of the Sexual assault. The complainant’s mother testified that her daughter

was 14 years at the relevant date. Although the complainant was examined by a medical

doctor after the alleged act, there was nothing in the medical report as to the age of the girl.

The defence counsel contended that the girl was 18 years when the offence was committed.

He pointed out that the doctor who examined the girl did not indicate the age of the girl.

Held inter alia;

I agree the doctor who examined should have indicated the age of the girl on the medical

report but his omission to do so was in no way prejudicial to the prosecution since there is

evidence of the mother about the age of her daughter. Also, by common sense the assessor
and court were of firm view that the victim was under 18 years. In the premises the

prosecution has proved this ingredient.

Proof of age by observation by the Court;

CASE: Uganda V Nsubuga Daniel Criminal Session Case No. 338/97 High Court;

The accused was convicted under Section 123 of the PCA. The issue was whether the victim

was under 18 years. The defence submitted that the prosecution failed to prove that the girl

was under 18 years because there was no document to that effect. That, furthermore,

although the mother and father of the victim came to court, they never gave evidence.

Instead, PW3 a sister to the victim testified in the case. According to the defence, the

evidence of PW3 was hearsay.

The court held inter alia that it was enough for the court and the assessors to determine

that the complainant before them was obviously under the age of 18 years and this was

possible by common sense. It was not necessary for the prosecution to labour to prove that

the complainant was below 18 years. Though the parents did not testify as to the age of the

complainant.

Aggravated Defilement;

Provided for under S. 129 (3) and 129 (4) of the PCA. Having canal knowledge of a child

under 18 years under aggravated circumstances.

Uganda V Anyolitho Denis [2016];

Principle/Rule established by Court’s decision;

any other cogent evidence.

Case Summary;

By Justice Mubiru, sitting at the High Court. The accused was indicted on one count of

aggravated defilement, contrary to S.129 (3) and S.129(4)(a) of the PCA. The accused was

alleged to have performed a sexual act on K.P, a girl aged four.

For the accused to be convicted of aggravated defilement, the prosecution had to prove

each of the following essential ingredients beyond reasonable doubt;

i. That the victim was below 14 years of age

ii. That a sexual act was performed on the victim

iii. That it is the accused who performed the sexual act on the victim.

In relation to each of these essential ingredients of the offence, the court found that;

i. Medical examination by a senior medical officer proved beyond reasonable doubt

that, as the date of the offence, K.P. was a girl aged four and therefore under

fourteen years of age. The obiter dictum of the Justice was that the most reliable

way of proving the age of a child is by the production of her birth certificate,

followed by the testimony of the parents. It has however been held that other ways

of proving the age of a child can be equally conclusive such as the court’s own

observation and common-sense assessment of the age of the child.

ii. Under Section 129 (7) of the PCA, “Sexual act” means penetration of the vagina,

mouth or anus, however slight, of any person by a sexual organ. Proof of penetration
 is normally established by the victim’s evidence, medical evidence and any other

cogent evidence.

iii. The only evidence purporting to identify the accused as the perpetrator was the

circumstantial evidence as to “semen” in the accused’s underpants and the victim’s

underpants. Prosecution never explored the basis of the investigation officer’s

opinion that what he saw on the underpants of the accused was wet semen. The

medical examiner did not characterise or classify the nature of the stains he had

found in the victim’s underpants as semen. The court therefore found the evidence

as to fluid present in the underwear was inconclusive and unreliable, and with it the

evidence linking the accused to the offence.