Uganda v Kiyemba (HCT-00-CR-SC 49 of 2020) [2023] UGHCCRD 172 (28 March 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HCT-00-CR-SC-0049-2020**

**UGANDA ------------------- PROSECUTOR**

## **VERSUS**

**KIYEMBA SAMUEL -------------------- ACCUSED**

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

## **JUDGEMENT**

The accused, **KIYEMBA SAMUEL,** is charged with the offence of Aggravated Defilement, contrary to section 129 (3) and (4) (a) of **the Penal Code Act, Cap 120**.

It is alleged in the particulars of offence that the accused person, during the month of April 2019, at Namasuba Modern Junior School in Makindye Sabagabo division found in Wakiso district, and being a person in authority over A. B., a child below the age of 14 years, performed a sexual act on the said A. B.

The accused person pleaded 'not guilty' thus bringing all the elements of the offence into issue.

The brief facts for the prosecution are that the accused was a teacher in Modern Junior School located in Namasuba, Makindye Sabagabo division in Wakiso district. He taught English and Social Studies and was also a class teacher of the P.6 Class.

A. B., PW 1, who will interchangeably be referred to as the victim, was aged 11 at the time and was a pupil in Modern Junior School. The accused was his class teacher.

The victim told the Court that on several occasions the accused person undressed himself, removed his penis and made the victim hold, squeeze and shake it. He threatened the victim that if he did not go along with it, he would tell his father that he was lazy and disrespected to school teachers.

That on other occasions the accused also made the victim remove his shorts and pull out his penis. That the accused would then touch or hold victims penis.

The matter was reported to the school authorities when a second boy, S. R., PW 3, who had also been a victim of the accused, reported the matter to his mother. The mother informed to the school Director and the accused was eventually arrested and charged.

The accused denied the commission of the offence. He denied the charges in respect to A. B., the victim. He also said that when he was arrested the charges read to him by the Police were with regard to the second boy S. R. It came as a surprise when he was indicted on the charges naming A. B. as victim.

He denied any kind of sexual act against any of the boys. He said as a teacher, the smartness of the students was a key area in his performance indicators, and if his pupils were untidy, he would suffer a salary cut. That around that period, the school introduced a new set of uniforms, but S. R. had problems putting it on properly. It was in those circumstances that the accused had to demonstrate to S. R. how to properly put on his belt. In the process he may have accidentally touched the boy's penis but there was no unlawful sexual activity.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (**Okethi Okale vs R 1965 E. A 555**). The standard of proof to be met is beyond reasonable doubt (see **Kamesere Moses vs Uganda** **S. C. C. A 8/1997** (unreported). It means that the prosecution should prove each of the elements of the offence must be proved to a standard beyond reasonable doubt.

It should be noted that a person accused is convicted on the strength of the prosecution case and not the weakness of the defence.

The essential elements in a case of Aggravated Defilement are that:

a) The victim was below 14 years of age.

b) That there was a sexual act performed on the victim.

c) That the accused was a person with authority over the victim.

d) The Accused person participated in the commission of this offence.

# **a) The victim was below 14 years of age.**

Age, just like any other issue or fact in dispute, must be proved by cogent direct or circumstantial evidence. The onus is on the prosecution to establish that the victim was below the age of 14 years.

The victim stated that he was 14 years old on the day he testified. In this courts estimation he certainly looked that age. Besides, in 2019 when he was medically examined, the medical clinical officer found him to be 11 years of age at the time.

This evidence, taken collectively, affirms that in 2019 when the offence was committed, the victim was below the age of 14 years.

In the circumstances, I have no doubt that this element of the offence, requiring that the victim should be below 14 years of age has been proved to a standard beyond reasonable doubt.

I will now handle the next elements collectively.

- **b) That there was a sexual act performed on the victim.** - **c) By a person with authority over the victim** - **d) The Accused person participated in the commission of this offence.**

I will start first with the accusation that the charges preferred in the Indictment are different from the ones mentioned to the accused at the police. That all the while, the police were questioning the accused about S. R. but he was surprised to see that it was A. B. who appeared on the Indictment.

I note that under Art 120 (3) (b) of **the Constitution** the Director of Public Prosecutions has the mandate to institute criminal proceedings against any person. It is therefore the DPP who decides what charges to bring against an accused person. This includes the detail or nature of the charges preferred.

The DPP's constitutional power must be exercised in line with the fair trial rights of the accused which are well stated in Art 28 of the same Constitution.

I find here that while it is true the charge and caution statement mentioned by the accused spoke about S. R. as the victim the indictment and summary of the case named A. B. as the victim. The accused was committed to the High Court for trial on the 20th of November 2019. He has had three years to prepare for his trial. He is well represented and has had opportunity to meet his accuser and challenge his evidence in this court. He was also furnished with the disclosure of the prosecution evidence well before the trial commenced. In that regard therefore there has been no prejudice whatsoever visited on the accused person. Accordingly, the charges stand.

There is no doubt that both the victim and the accused person were well known to each other. The accused stated that PW 1, A. B., and S. R. were both his students. The question of identity is therefore not in issue here.

The victim stated that there was an organisation doing male circumcision at the school. The accused told the students that he would be the organisation representative in the school.

One evening after class, the accused told the victim, who was a class monitor to remain behind. When the other children had left, the accused remained with the victim in the class. It was then that the accused told the victim to touch his penis.

The very next day the accused told the victim to follow him to the toilets. He then pulled down his (accused person) trousers and boxer shorts and asked the victim to touch, squeeze and shake his penis.

He then pulled down the victim's boxer shorts and held the victim's penis.

On another occasion in the class room, after all the children had left for home, he took the victim to the back of the class where there were cup boards used to keep books, he told the victim to undress and then he touched the victim's penis.

This went on for several occasions. If the victim resisted the accused would threaten to beat him or tell his father that he was deteriorating and lazy in class. He would then forcefully hold the victims hand and place it on his penis.

During the school open day one Friday in April 2019, the accused told the victim's father that the victim was lazy and disrespectful towards his teachers, which made the father very angry.

The Monday after the school open day, the accused directed the victim to follow him to the toilets. He then ordered the victim to squat. The accused undressed himself and removed his penis from the trousers and told the victim to suck it. The victim refused. The accused tried to force him but the victim who would not relent. It was then that the accused told him to go home.

The next day the victim told his friends S. R., KR and AC. That his friends all said the accused had been doing the same thing to them.

S. R. testified as PW 2. His evidence was that on several occasions the accused had made him touch his penis. That the accused also sometimes touched the penis of S. R.

On the school Open day the accused told the mother of S. R. that her son was lazy and did not do his school work satisfactorily. It was after school that day that S. R. told his mother what the accused had done to him. he did not want to go back to school as a result. They came together to the school and reported the matter to the School Director who confronted the accused but he denied the allegations.

S. R. and A. B. were both medically examined but the results were unremarkable. The penile shaft, anus and scrotum were normal and had no injury.

In his defence the accused denied the offence. He said the Wednesday following the school open day he was called by the School Director who said the mother of S. R. had reported him for touching her son's private parts. He told the school director that because the pupils had a new uniform, and because the smartness of the students was attributed directly to the class teacher, he had helped S. R. put on his uniform properly. That in the process of adjusting his belt he may have accidentally touched the boy's penis.

He also said the mother of S. R. had developed a grudge against him. that she had wanted him to pick her son from home for Saturday classes. When, on two occasions he was unable to pick the boy, she held it against him.

To prove the offence of defilement, there must be evidence of sexual act performed on the victim.

Under Section 129 of **The Penal Code Act** a sexual act is defined as the penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; OR the unlawful use of any object or organ by a person on another person's sexual organ. The term sexual organ in this section refers to a vagina or a penis.

The accused did not allege a grudge or any misunderstandings between him and A. B. or the parents of AB.

This court has considered the manner in which both A. B. and S. R. testified. They were very clear in the manner of their evidence. While A. B. appeared bold S. R. was more muted. They were both steadfast and consistent in their evidence. Their testimony was never shaken in cross examination. The demeanour of both did not strike me as that of a child telling lies.

I have also taken into account the evidence of the accused person saying that the mother of S. R. bore a grudge against him. He said it was the genesis of the charges. The allegation of a grudge was never put to Birabwa Farida, PW 3 and mother of S. R., when she testified. In my view it was an afterthought brought up at the last minute by the accused.

Additionally, no such allegation was made about A. B. whose evidence was equally incriminating against the accused.

The School Director, Kintu Jamila, testified as PW 4. She stated that PW 3 had reported to her office in April 2019 after the school open day and reported that her son S. R. had a problem and was not comfortable coming to school. That the accused had been telling S. R. to touch his penis. That PW 4 spoke to S. R. who confirmed the allegations. He also said the accused had been doing the same thing to several other boys like A. B., C and K. Kintu Jamila spoke to all these boys who confirmed the accusations.

The evidence of PW 4 is again evidence of the consistency of the prosecution case. It also furnishes corroboration of the testimony of A. B. considering Section 156 of **the Evidence Act** which stipulates,

In order to corroborate the testimony of a witness, any former statement made by the witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Going back to the question of a sexual act, the accused on several occasions touched the victim's penis. He used his hand. The unlawful use of any object or organ on another person's sexual organ completes a sexual act.

According the **Merriam-Webster** *online dictionary* an organ is a bodily part performing a function. **The Oxford** *online dictionary* defines it as a part of the body that has a particular purpose.

On the human anatomy the hand is specifically developed to touch, hold or feel. In this case, it is alleged that the accused person used his hand on the penis of the victim. Put differently, the accused purportedly used one of his organs to touch the victim's sexual organ. It was illegal or illicit sexualised contact with a child below 14 years of age.

I have weighed all the evidence above. It is my finding that indeed the accused performed a sexual act on the victim. That the report made by A. B. to PW 4, the school director, corroborates the allegations of sexual act performed on the victim within the meaning of Section 156 of **the Evidence Act**. This was a report to the head teacher made shortly after the alleged acts had happened. I am aware that corroboration is not a legal requirement in these circumstances but it adds weight to the evidence adduced.

The prosecution also brought charges against the accused as a person who had sexual act over the victim when he was a person in authority over the victim stipulated in Section 129 (4) (c) of **the Penal Code Act**.

In my view, authority in these circumstances would be established where it is shown the accused had the power to direct and control the victim including a capacity to give him orders. Or that he had the influence to direct the victim to act in any particular way based on their unequal power relationship. Authority would also be demonstrated by showing the accused had the responsibility and obligation to provide care, safety and protection and act in the best interest of the child at that time.

As a teacher, I have no doubt that the accused had custody of A. B. and the others when they were at school.

In the result the accused was a person in authority over the victim and he performed a sexual act on him.

The second, third and fourth elements of the offence stand proved.

The lady assessor had advised this court to find the accused guilty of the lesser offence of Indecent Assault. In view of my findings here I respectfully disagree.

I therefore find, **Kiyemba Samuel,** *guilty* of the offence of Aggravated Defilement contrary to Sections **129 (3)** and **(4) (a)** of the **Penal Code Act** and **convict** him**.**

**.....................................................**

#### **Michael Elubu**

#### **Judge**

**28.3.2023**