Uganda v Babyesiza (HCT-17-CR-SC-0347-2024) [2024] UGHC 1244 (11 September 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT NAKASEKE**

**HCT-17-CR-SC- 0347-2024**

**(Arising from SMT-AA-004-2023)**

**SMT/CRB/047/2023**

**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION**

**VERSUS**

**BABYESIZA YUDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED**

**BEFORE LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person Babyesiza is indicted with aggravated defilement c/s 129 (3) (4) (a) of the Penal Code Act as amended. It is alleged that between 21.2.2023 and 23.2.2023 at Kabogwe L. C.1 Kapeeka sub- county, Nakaseke district, he being a person in authority over the victim as her teacher performed a sexual act upon Nansamba Noeline (N. N) a girl aged 12 years. 2. On 5.6.2024, the accused person appeared before me for plea taking and when the indictment was read to him, he pleaded not guilty. Thereafter, Kyalimpa Evelyne and Rev. Mwesigye Samuel were appointed assessors to whom the accused had no objection to their appointment. 3. Upon the assessors taking the assessors’ oath, the trial of the accused person commenced on 19.8.2024. Prosecution was represented by Patricia Gonza Kirya, State Attorney while the accused was represented by Irene Akol on state brief.

Burden of proof

1. The prosecution had a duty to prove beyond reasonable doubt the following ingredients of aggravated defilement: 2. The victim was below fourteen (14) years as prescribed by section 129(4)(a) of the Penal Code Amendment Act 2007. 3. Performance of a sexual act. 4. Participation by the accused person.

Age of the victim

1. The medical report PF3A, which was admitted by consent of both counsel and marked Pexh.1 shows that on 24.2.2023, the victim N. N was examined by Semakula David, a medical clinical officer at Kapeeka Health Centre and found to be an adolescent aged ten (10) years. He based his finding on the dental formula of 28 teeth and a tanner staging. The victim’s mother Nalubowa Jane PW2, aged 29 years old, resident of Kabenge, Kapeeka, Nakaseke district testified that the victim is aged thirteen (13) years having been born on 22.12.2011 which means between 21.2.2023 and 23.2.2023 when the sexual assault is alleged to have taken place, she was aged approx. twelve (12) years. The prosecution therefore proved beyond reasonable doubt that the victim was below 14 years at the time of the alleged incident.

Whether there was performance of a sexual act

1. Prosecution relied upon medical evidence captured in PF3A (Pexh.1). Semakula David, a medical clinical officer at Kapeeka Health Centre examined the victim on 24.2.2023 and recorded the findings on PF3A. Semakula found bruises around the vaginal opening which injuries were as result of a pointed object. At page 4 of PF3A, the examining medical officer determined that there was a freshly broken hymen. The fact that the offence is alleged to have taken place between 21.2.2023 and 23.2.2023 while the child was examined on 24.2.2023, only a day or two after makes this medical report credible evidence of performance of a sexual act.

Participation by the accused

1. According to Nakiyemba Margaret PW1, a 62-year-old cultivator, resident of Kabwoge LC1, Kapeeka, Nakaseke district and a grandmother to the victim, the accused person was a teacher at Kasegwa where her granddaughter was a primary three pupil. On Thursday 23.2.2023, the victim returned home from school at 5 p.m crying and saying she would not return to school. She first reported to the mother, Nalubowa Jane, PW2 and then to the grandmother that the teacher had defiled her. 2. Nakiyemba further testified that the victim told her that on 23.2.23 at 10:00am, the accused person had held her hand so he could send her to buy him airtime and when they reached a home which was a distance from school, he ordered her to enter a toilet, the victim informed her that this was the second time he was defiling her and he later threatened to kill the girl if she told anyone. It is at this point that the mother took the victim to the clinic at night and later to the police who advised her to return the next day which she did at 8 a.m. In- cross examination, Nakiyemba testified that she examined the victim before she was taken to hospital as she told her she felt pain. 3. It was Nakiyemba’s evidence that the girl went back to school so as not to make the teacher suspicious, so the police went to arrest him at school and the girl came along with the police. Later, the doctor came to the police station at 5pm, examined her and confirmed the defilement. She witnessed all this as she was at the police the whole day and she returned home at 7pm. 4. Nakiyemba, Nalubowa Jane PW2, a 29-year-old resident of Kabogwe LC1, Kapeeka, Nakaseke district and mother to the victim, corroborated Nakyemba’a account of the events after the victim returned home on 23.2.2023. Nalubowa knew the accused as a teacher at Spring Care primary school Kabwoge where the victim is a pupil in primary four. On 23.2.2023, as she returned from the garden, the victim returned home and told her she would not return to school because teacher Babyesiza defiles them. 5. According to Nalubowa, the victim narrated to her how the teacher took her to the toilet and defiled her. Due to shock, Nalubowa sent the girl to her grandmother Nakiyemba. In the presence of both herself and the victim’s grandmother, the girl said the teacher held her by the hand to send her somewhere and on the way, he took her to the toilet, ordered her to remove her clothes and ordered her not to cry or report, or else, he would beat her. He then removed her pants and defiled her. 6. According to Nalubowa, after the girl narrated the incident, she took her to a clinic, later she took her to police where she was advised to return the next day. The police then went to school with their doctor who confirmed the victim had been defiled and the accused person was arrested. In cross-examination, Nalubowa testified that the victim informed her that the accused defiled her on Tuesday, Wednesday and Thursday and on those days, the victim appeared sickly. 7. N. N PW3, the victim aged 13 years, a pupil of primary three in Nakalonze Primary school testified in chambers that the accused was a master (teacher) at her school and her class teacher. She testified that the accused told her he wanted to send her so he led her by hand. On Tuesday 21.2.2023 at 9am, he held he her by her hand, took her to madam’s toilet, and ordered her to remove her pants. On refusing to do as she was told, he removed them himself and defiled her, while ordering her not to cry. She testified that the toilet is a distance from the school and he slept on her while performing a sexual act. The victim demonstrated this with the help of a male and female doll. 8. She further testified that he then pulled her up and the two returned to school. According to the victim, he repeated this conduct on Tuesday 22nd and Wednesday 23rd February 2023. 9. When she went back home, she reported to her mother and grandmother whom she told that she would not return to school. It is at this point that her mother took her to hospital at about 9:00pm as she was feeling pain, the next day, mother went to police to report and at about 10:00am, she saw police officers go to her school, arrest the accused person and she was also put on the motorcycle. Another doctor examined her and they then returned home but after two days, she did not return to that school. 10. What I find contradictory in the testimony between the victim and her mother is that whereas the mother testified that the girl narrated the details of the incident in the presence of both herself and the grandmother, in cross-examination, the girl testified that when she was telling her mother about the incident, grandmother could not hear. The important point, however, is that the victim confirms that she reported to both her mother and grandmother about the incident and even told them that she would not return to school. I therefore find that this is a minor contradiction that does not go to the root of the case. 11. In his defence, Babyesiza DW1, a 26-year-old resident of Kabegure village, Kalagala, Nakaseke district and a teacher at Spring Care Nursery and Primary School at Kabogwe testified that he taught at the school during third term 2022 and first term 2023 and he knew the victim as a primary one pupil. He as well knew Nalubowa Jane, the victim’s mother as a parent of the child, then they later fell in love, in December 2022. That the relationship lasted for four months and ended in February 2023. 12. According to the accused, the relationship ended because his wife Aganyire Rosemary was a teacher at the same school and by third term, when he was in love with Nalubowa, himself and Aganyire conflicted and she left. He testified that by December 2023, he had a plan to get land and he informed Nalubowa about it, who bought the idea and the two went to Kampala to tell his mother to get money for capital. The two then returned, hired land and started farming. According to the accused, in first term 2023, when his wife Agangire returned, Nalubowa became jealous and they separated. 13. The accused further explained that on Tuesday 21.2.2023, the victim N. N had not started going to school as he learnt from her that she was sick when she returned on Ash Wednesday, and on this day, the whole school went to Kabogwe Catholic Church which is 500 meters from school at 8:00am and they returned at 3pm. 14. Nandyose Hellen DW2, a 38-year-old teacher at Spring Care Nursery and primary school, a resident of Kabogwe Nakaseke district testified that she knew both the victim and the accused person. Just like the accused, she testified that the victim had not started school on 21.2.2023 and she resumed on 22.3.2023 when the school went to church on Ash Wednesday at 9:00am and returned at 3pm. She further testified that on return, they all stayed at school including the accused and at 4pm, they released the pupils to return home. 15. While the accused gives no account of his whereabouts on 23.2.2023, Nandyose DW2 testified that he was digging holes for fencing the school with other men while some pupils were fixing the poles. According to her, this activity started at 8:30 am and they completed in the evening. At that time, the victim was at school as they used older children to assist and she did not see Babyesiza with the victim. 16. Although Nalubowa denied in cross-examination that she and the accused were lovers, Nandyose insisted that Nalubowa and the accused person had been lovers and at the time of the incident, the relationship had ceased when the wife of the accused returned to their home which did not please Nalubowa. According to Nandyose, Nalubowa threatened to to do something to the accused that he would not forget. 17. From the foregoing analysis, it is evident the defense suggests that the accused was framed by Nalubowa to get back at him after their affair went sour but it can also be argued that the accused defiled the victim to get back at Nalubowa. I therefore the reject the defense case in this regard. 18. In conclusion, while it is possible the school went to church on Ash Wednesday 23.2.2023 at about 9 a.m, I am satisfied twith the prosecution case that it was about the same time that the accused took the victim to a toilet and defiled her from there. Furthermore, Nandyose’s testimony that the victim was not at school on 21.2.2023 is not credible because, the victim gave a clear account of how the accused defiled her that day in the morning at about 9 a.m. 19. Additionally, medical evidence recorded on 24.2.2023 shows bruises around the vaginal opening and a freshly broken hymen which is consistent with very recent sexual activity which could have happened between 21.2.2023 and 23.2.2023. Furthermore, the possibility of mistaken identity does not arise because both accused and the victim knew each other and the incident happened in broad daylight. Lastly, both her mother Nalubowa PW2 and her grandmother Nakayemba PW1 acted promptly when the victim reported to them what had happened to her. 20. In agreement with the assessors’ opinion, I find that the prosecution has proved its case beyond reasonable doubt and the accused person is convicted as indicted.

**DATED AT NAKASEKE THIS 11TH DAY OF SEPTEMBER 2024.**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Patricia Gonza Kirya, State Attorney for the prosecution

Irene Akol for the accused on state brief.

11.9.2024

Accused present

Kirabo for the state

Akol for the accused on state brief.

Court: Judgement delivered.

State:

* The victim was of tender age * Accused was her teacher. * Offence is rampant in the community. * Pray for a deterrence sentence.

Akol:

* He is a first offender * A youth aged 26 years. * Has two children

Accused:

* I pray for lenient sentence. * I was on school practice.

**Sentence**

I have considered both aggravating and mitigating factors. I am mindful that the girl child in the community is vulnerable on account of negative practices which derail their pursuit of education. This inevitably leads to poor quality of life when they reach adulthood as they have no skills to exchange for value.

The fact that accused abused his position of trust as a teacher is a factor that attracts a punitive sentence, his youthful age, notwithstanding.

Appropriate sentence is 18 years. As he has been on remand for on year and six months since 6.3.2023, he is sentenced to 16 years and six months imprisonment.

Wolayo J