Uganda v Elalu (Criminal Session Case 401 of 2022) [2025] UGHC 321 (8 May 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI CRIMINAL CASE NO. 0401 OF 2022 UGANDA ::::::::::::::::::::::::::::::::::: **VERSUS**

ELALU JACOB ::::::::::::::::::::::::::::::::::::

## Before: Hon. Justice Boniface Wamala

#### **JUDGMENT**

## Introduction

[1] The accused person in this case is indicted of two counts. The 1st count is Aggravated Trafficking in Children c/s 3(1)(a) and 5 (a) of the Prevention of Trafficking in Persons Act, 2009 [now sections 2(1)(a) and 4(a) of Cap 131]. It is alleged that the accused person and another still at large on the 20th day of February 2021 at Akongol village in Kalaki District recruited, transported, transferred and harbored Akwato Judith a girl aged seventeen years by means of deception or abuse of power or position of vulnerability for purposes of sexual exploitation and child marriage. The $2^{nd}$ count is Defilement c/s 129 (1) of the Penal Code Act [now section 116(1) of Cap 128]. It is alleged that the accused person on the 20th day of February 2021 at Akongol village in Kalaki District performed an unlawful sexual act with Akwato Judith a girl aged 17 years old. The accused person denied the charges and the case proceeded for hearing.

#### Representation

[2] At the hearing, the state was represented by Mr. Bamwesigye Emmanuel and Adero Doreen from the Office of the Director of Public Prosecutions (ODPP) while the accused was represented by Mr. Olobo James Felix and Mr. Justine Okwalinga, counsel on state brief. The assessors in this case were Mr. Erwaku Lawrence and Ms. Acheko Proscovia. Neither the accused, his lawyers nor the state objected to the assessors' appointment.

## The Burden and Standard of Proof

[3] In all criminal cases, an accused person is presumed innocent until proven guilty or until he or she pleads guilty; as provided for under Article 28(3)(a) of the Constitution of the Republic of Uganda. As such, the burden of proving each and every ingredient of an offence is always on the prosecution and never shifts onto the accused. See: Woolmimgton v DPP [1935] AC 462. The accused person is only convicted on the strength of the prosecution case and not because of weaknesses in his defence. See: Ssekitoleko v Uganda (1967) EA 531. Each essential ingredient of the alleged offence must be proved beyond reasonable doubt. However, proof beyond reasonable does not mean proof beyond a shadow of doubt. The standard is satisfied once any evidence suggesting the innocence of the accused person, at its best, only creates a mere fanciful possibility but not any probability that the accused is innocent. See: Miller v Minister for Pensions [1947] 2 ALLER 372.

# The evidence in this case

## *Agreed facts*

[4] The state and the defence signed a memorandum of agreed matters wherein some facts were agreed upon, namely that;

(a) The victim went missing from home on 20th February 2021;

(b) The victim was below the age of 18 years; and

[5] The following documents were also agreed upon in the said memorandum, namely;

(a) The victim examination report (PF3A);

(b) The accused examination report (PF24A); and

[6] The memorandum of agreed matters was tendered and admitted in evidence in accordance with section 67 of the Trial on Indictments Act (TIA) Cap 25. The agreed documents were admitted in evidence and marked as PE1, PE2 and PE3 respectively.

## The witnesses

[7] Prosecution led evidence of two witnesses. The defence did not lead any evidence as the accused person opted to remain silent. PW1 was the victim's father, Edau Bernard, a male adult aged 50 years, peasant farmer, resident of Okongor village, Kakere Parish, Kalaki Sub County in Kalaki District. He stated that he did not know the accused person before the incident. He knew one Alado Dina whose home is about a kilometre away from his home. He stated that the accused forcefully picked his daughter and took her away on 20th February 2021. PW1 stated that he had gone to Otuboi market to do business and upon return, he found one of his children, the victim, missing from home. When he inquired from the other children, he was told that the victim had been taken by Alado Dina. PW1 later came to know that Alado Dina was a sister to the accused person. The victim did not return home that night. She returned the next day at about 8:00pm and informed her father (PW1) that she had been taken to Aswii village by the accused person to be his wife. The matter was reported to police. The accused was arrested and charged. At the time, the victim was 17 years old and schooling in P.7 at Okongol Primary school.

[8] PW2 was the victim, Akwato Judith, a female adult aged 21 years at the time of testifying, resident of Okongol village, Kaker Parish, Kalaki Sub-county in Kalaki District. She stated that she was currently studying in Senior 3 and was in P.7 in 2021 at Okongol Primary School. She stated that on the fateful day, Alado Dina, whom she knew from the village, came to their home, picked her and took her to her home. Alado Dina told the victim that Elalu, the accused person, was looking for a wife. The accused person then came to the home of Alado Dina, picked the victim and took her to his home in Aswii village $\overline{3}$

where they reached at about 10:00 pm. The victim stated that she slept in the accused's grass thatched house that night and had sex twice with the accused. She stated that it was her first time to have sexual intercourse in her life. The following day, she was asked to go and meet the accused's father who told her to first go back home and they would come and pick her as a wife. The accused person then took her back to Alado's home. She then returned home. When her father inquired from her where she had been, she told him that she had been taken by Alado Dina to her home from where the accused had picked her and taken her to his village. On 22/2/2021, she was taken to police and was also medically examined at Kalaki Health Centre IV.

## **Submissions by Counsel**

[9] The prosecution and the defence made and filed written submissions which have been adopted and relied upon by the Court.

# The law and ingredients of the offences

[10] In Count I, the accused is indicted on the offence of aggravated trafficking in children. Section 2(1)(a) of the Prevention of Trafficking in Persons Act Cap 131 provides that any "person who recruits, transports, transfers, harbours or receives a person, by means of; threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation, commits an offence and is liable, on conviction, to imprisonment for a term of fifteen years". Section 4(a) of the Prevention of Trafficking in Persons Act Cap 131 provides that any "person who does any act referred to under section 2 in relation to a child, commits an offence of aggravated trafficking in children and is liable, on conviction, to suffer death".

[11] In the $2^{nd}$ count, the accused is indicted on the offence of defilement. Section 116(1) of the Penal Code Act Cap 128 provides that any "person who performs a sexual act with another person who is below the age of eighteen years, commits a felony known as defilement and is liable, on conviction, to life *imprisonment*".

[12] For the accused to be convicted of the offence of Aggravated Trafficking in Children in Count I, the prosecution must prove each of the following ingredients beyond reasonable doubt;

- a) The age of the victim; - b) The act of recruiting, or transporting, or transferring, or harbouring, or receiving of the victim of trafficking in persons; - c) The performance of the above act by means of deception or abuse of power or position of vulnerability of the victim; - d) The purpose of exploitation of the victim; and - e) Participation of the accused in the commission of any of the acts, or means or purpose of trafficking.

[13] On the 2nd count of defilement, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

- a) That the victim was below 18 years of age; - b) That a sexual act was performed on the victim; and - c) That it is the accused who performed the sexual act on the victim.

#### **Resolution by the Court**

#### *The age of the victim*

[14] In law, the most reliable way of proving the age of a child is by the production of her birth certificate, any other documents speaking to her date of birth, 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 medical evidence, the court's own observation and common sense assessment

of the age of the child. See: Uganda v Oryem Bosco (Criminal Case No. 116 of 2019) [2020] UGHC 78 (10 July 2020).

[15] In this case, it was agreed as a fact between the prosecution and the defence that the victim was a child below the age of 18 years. A copy of the victim's birth certificate was produced and tendered before the Court as an agreed document (PE3). It indicates that the victim's date of birth was 2nd September 2003; which made her less than 18 years by 20th February 2021. The medical examination report of the victim (PF3A) was also admitted on record upon agreement between the prosecution and the defence. In the report, the victim's age was also stated as 17 years. In the oral testimony before the Court, both the victim (PW2) and her father (PW1) stated her age as 17 years. The above evidence is sufficient to prove beyond reasonable doubt that the victim was a girl below the age of 18 years.

# The act of recruiting or transporting, or transferring, or harbouring, or receiving of the victim

[16] In this case, it was alleged that the accused person and another still at large on 20th February 2021 recruited, transported, transferred and harbored the victim who was aged 17 years. It was agreed between the prosecution and the defence that the victim was missing from home on 20th February 2021 and that the victim was transported from Okongol village in Kalaki District on 20th February 2021. It was stated by the victim (PW2) in evidence that one Alado Dina picked her from home, took her to the former's home, from where the accused person picked her and took her to Aswii village. The defence counsel in their final submissions did not contest that this element was satisfied by the prosecution. I am therefore satisfied that this element of the offence has been proved by the prosecution beyond reasonable doubt. The means of deception or abuse of power or position of vulnerability of the victim

[17] For purpose of the Prevention of Trafficking in Persons Act Cap 131, a child is defined under section 1 as a person below the age of 18 years. Under section 2(4) of the Act, the acts of recruitment, transportation, transfer, harbouring, or receipt of a child for the purpose of exploitation shall be sufficient to constitute the act of trafficking in persons even if any of the means specified under sub-section 1 of section 2 of the Act was not involved. The consent of the victim or if a child, the consent of her parents or guardians to the acts of exploitation is not relevant (section 2(5) of the Act). On the case before me, the evidence of the victim (PW2) is that she was transported for purpose of being taken as a wife, which would amount to sexual exploitation. The means by which she was taken therefore become irrelevant. The defence in their final submissions did not contest that this element was satisfied by the prosecution. I am equally satisfied that the prosecution has proved this element of the offence beyond reasonable doubt.

#### *The purpose of exploitation of the victim*

[18] Under section 1 of the Act Cap 131 "sexual exploitation" is defined as "the use of a person in prostitution, sex tourism, pornography, the production of pornographic materials, or the use of a person for sexual intercourse or other lascivious conduct". In this case, it was the evidence of the victim that she was taken as a wife to the accused and that they had sexual intercourse with him twice that night. She further stated that the accused's father told her to return home and they would come and pick her as a wife. This element was also not contested by the defence in their final submissions. The prosecution has proved beyond reasonable doubt that the victim was transported, transferred, harboured or received in this case for purpose of sexual exploitation.

## *Participation of the accused*

[19] Participation of an accused person in the commission of an offence is satisfied by the prosecution where the evidence adduced places the accused person at the scene of the crime or discloses him/her as the perpetrator of the crime. The evidence may be direct or circumstantial. In this case, the victim (PW2) testified that the accused person picked her from the home of Alado Dina, took her to his house in Aswii village, where she spent a night and had sexual intercourse with him twice that night. The victim further stated that after meeting with the accused's father the following morning, she was advised to return home until they would come for her as a wife. The accused then returned her to Alado's place. The victim's father (PW1) stated that he knew Alado Dina whose home was about a kilometer away from his. He also recounted what the victim told him when she returned home. The defence contested that the prosecution had proved the accused's participation in the commission of the alleged offence.

[20] The prosecution bears the burden to prove beyond reasonable doubt that its evidence concerning identification of the accused person is free from error and reliable; and that there is no other explanation that is capable of showing the accused's innocence. On the evidence before me, only the victim saw the accused person. The Court is therefore faced with evidence of a single identifying witness. The position of the law is that the court can convict an offender on the basis of a single identifying witness. However, in such a case, the court should warn itself of the danger of mistaken identity. See: John Katuramu vs Uganda (Crim. Appeal No. 2 of 1998) [1998] UGSC 14 (1 October 1998).

[21] In Abdullah Nabulele & 2 Others v Uganda [1978] UGSC 5 (5 October 1978), it was held that the factors that determine the quality of identification evidence include the length of time the witness had to watch the offender, the distance,

the light and familiarity of the witnesses with the accused person. In the instant case, the victim stated that she was taken to Aswii village by the accused person where they reached at about 10:00PM, they slept together and had sexual intercourse. The victim also met and talked to the accused's father. The accused then returned the victim to his sister's house (Alado Dina) from where he had picked her. It is clear to me that the circumstances of the present case were very favourable to correct and unmistaken identification of the accused person. The victim had enough time and opportunity to properly identify the accused person. She also became familiar with him.

[22] Having warned myself of the danger of relying on the evidence of a single identifying witness, I find that he prosecution evidence rules out any possibility of erroneous or mistaken identification of the accused person. The prosecution has therefore proved beyond reasonable doubt the participation of the accused person in the commission of the offence in Count I. I also find that the prosecution has proved all the essential ingredients of the offence of aggravated trafficking in persons against the accused person. In agreement with the opinion of the lady and gentleman assessors, I find the accused person guilty of the offence in Count I and I convict him accordingly.

[23] On the second count of defilement, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

- a) That the victim was below 18 years of age; - b) That a sexual act was performed on the victim; and - c) That it is the accused who performed the sexual act on the victim.

## *That the victim was below 18 years of age*

[24] I have already made a finding on Count I that the victim was a girl below 18 years of age. This element of the offence has therefore already been proved by the prosecution beyond reasonable doubt.

## That a sexual act was performed on the victim

[25] A sexual act is defined under section 116(7) of the PCA to mean; (a) penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; or (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. Note that a sexual act does not necessarily have to be sexual intercourse. In the present case, the evidence by the victim (PW2) was that she had unprotected sex twice that night at the accused's house. She stated that this was her first sexual encounter in her life. The victim's medical examination report (PE1) showed that her genitals showed a normal opening and there was no sign of recent rapture of the hymen. The defence in their submissions did not contest that this element was satisfied by the prosecution. I have found the victim's account of what transpired to be reliable and I have believed the prosecution evidence. I am satisfied that the prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim in this case.

# That it is the accused who performed the sexual act on the victim

[26] I have already evaluated the evidence concerning the accused's participation in the offence of aggravated trafficking in children in Count I. These two offences were committed in a series of the same transaction. There is sufficient evidence on record, which has been believed by the Court, that the victim was trafficked for purpose of sexual exploitation. The Court has also found that during the trafficking of the victim, a sexual act was performed on the victim. There is sufficient evidence before the Court to prove that the perpetrator of the offence of trafficking also performed the sexual act on the victim. The accused person has been properly identified and linked to the offence of defilement of the victim under Count II. The prosecution has, therefore, proved beyond reasonable doubt that the sexual act on the victim was performed by the accused person.

[27] I am satisfied that the prosecution has proved all the essential ingredients of the offence of defilement against the accused person beyond reasonable doubt. In agreement with the opinion of the lady and gentleman assessors, I find the accused person guilty of the offence of defilement in Count II and I convict him accordingly.

[28] In all, therefore, the accused person has been found guilty of the offences in both counts and is accordingly convicted.

It is so ordered.

Dated at Soroti this 8th day of May, 2025.

**Boniface Wamala** JUDGE