Uganda v Nyanzi & 3 Others (Criminal Session 10 of 2022) [2024] UGHC 544 (31 May 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CRIMINAL SESSIONS CASE No. 0010 OF 2022 UGANDA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. NYANZI ALI - 2. BYAKATONDA FRED - 3. MUBIRU ASUMAN - 4. KIDOGWA SALIM

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## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

### **RULING**

- 1. The accused persons are indicted with a count of rape contrary to section 123 and 124 of the Penal Code Act, Cap. 120. It is alleged that the accused on the 23<sup>rd</sup> day of August, 2021 at Namilyango Village in Mukono District, had unlawful carnal knowledge of Sheillah Mbabazi without her consent. All the accused persons pleaded not guilty to the indictment. The prosecution called 3 witnesses in order to prove the indictment against the accused. - 2. According to section 73 of the Trial on Indictment Act. Cap. 23, once the prosecution closes its case, the court has to determine whether or not the evidence adduced by the prosecution has established a *prima* facie case against the accused persons. In the case of R. T. Bhatt v. R (1957) E. A. at page 332, a prima facie case was defined as:

"one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence."

- 3. When court is convinced that a *prima facie* case has been made out against the accused, they should then be put to their defences. However, once a *prima facie* case has not been made out by the prosecution, the accused would be entitled to an acquittal. (See **Kadiri** Kyanju and Others v. Uganda (1974) HCB 215). - 4. At this stage, there should be sufficient evidence to require the accused persons to offer explanations as to why they should not be convicted based on the evidence adduced by the prosecution. Following the **Practice Note of Lord Parker** which was published and reported in [1962] ALL E. R 448, the case of Uganda v. Alfred Ateu [1974] HCB 179, laid down two considerations justifying a finding that there is no *prima facie* case made out. These considerations are as follows: - (a) When there has been no evidence to prove an essential ingredient in the alleged offence; or - (b)When the evidence adduced by prosecution has been so discredited as a result of cross-examination, or is manifestly unreliable that no reasonable court could safely convict on it. - 5. During the hearing of the prosecution case, the prosecution was represented by Counsel Kubokwe Kennedy, a State Attorney from the Office of the Director of Public Prosecutions. The accused persons

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were represented by Counsel Ayubu Musubo who was on State brief. Both counsel for the prosecution and accused persons filed the parties' respective submissions which are considered in this ruling.

- 6. It was submitted for the prosecution on the first ingredient that P. W.3 Mbabazi Sheillah, the victim, informed court that on the 23<sup>rd</sup> day of August, 2021 at around 8:00 p.m. in the evening, A3 who was wearing a cream shirt while standing in the dock had unlawful sexual intercourse with her and that A3 is the one who penetrated into her private parts while A4 who was wearing a green shirt while standing in the dock caught her mouth as she was trying to scream. - 7. That P. W.3 further informed court during cross examination that while recording her statement at police she stated that it was about 4 men that got involved in raping her and also informed court during examination - in - chief that she had been gang raped which led to the arrest of $AI$ and $A2$ - 8. Furthermore, counsel argued for the prosecution that proof of unlawful sexual intercourse is also corroborated by PEx1 in regard to the victim Mbabazi Sheillah, since it reveals that her vulva and vagina were found bruised, reddened, tender and swollen which proves that there was unlawful sexual intercourse. The prosecution counsel submitted that the first ingredient of unlawful sexual intercourse with the complainant has been proved with the above availed evidence.

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- 9. On the second ingredient, it was contended for the prosecution that proof of lack of consent is normally established by the victim's evidence, medical evidence and any other cogent evidence. That P. W.3 the victim in this case informed court that A4 who was dressed in a green shirt while standing in the dock held her mouth when she tried to make an alarm as A3 who was dressed in a cream shirt while standing in the dock used her. That she further informed court that she was gang raped by the accused persons. - $10.$ P. W.3 added that she was raped at around 8:00 p.m. in the evening of 23<sup>rd</sup> August, 2021, and that after raping her, the accused persons ran away and she rose up and started screaming as she headed towards home. P. W.1 Masombo Peter the chairperson of the area also testified before court that on the 23<sup>rd</sup> August, 2021 at around 9:00 p.m. in the night while at home he opened his door to a woman called Sheillah who was crying and her clothes were soiled with mud. She informed him that she had been gang raped. The prosecution counsel submitted that this corroborates the testimony of P. W.3 on the fact that she was gang raped and this only clarifies the fact that the victim never consented to the sexual intercourse otherwise she wouldn't have reported the matter to the chairperson. - $11.$ The prosecution counsel averred that the above evidence establishes the fact that the victim never consented to the sexual intercourse since no person in her senses can consent to a gang rape. That the fact that the incident happened at around 8:00 p.m. when there is usually darkness at such a time furthermore proves the fact

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that there was never consent from the victim in this matter. That the victim wouldn't have screamed if she had consented to the sexual intercourse. Counsel submitted that the second ingredient of lack of consent by the victim in this matter has also been proven.

- $12$ Counsel contended for the prosecution on the ingredient of accused's participation that P. W.3 Mbabazi Sheillah the victim testified during cross examination that she was not seeing the accused persons for the first time. PW3 testified that she used to see them while she was going for work in the morning since they were using the same route with her. However, she wasn't their friend and that she never knew their names. Counsel stated that this suggests that the victim was able to recognize the accused persons when they raped her since she was not meeting them for the first time. - $13$ Additionally, the prosecution counsel argued that P. W.3 informed court that there was moon light at the time and that's how she was able to recognize the accused persons. That P. W.3 was able to recognize A3 and A4 before court and it was her testimony that A3 who was wearing a cream shirt while standing in the dock had unlawful sexual intercourse with her and she added that A3 is the one who penetrated into her private parts while A4 who was wearing a green shirt while standing in the dock caught her mouth as she was trying to scream. That she was able to identify them with the help of the moonlight. - $14$ The prosecution counsel submitted that after being asked by court as to whether she recognized the accused persons at the crime

scene or at the identification parade, P. W.3 responded that she recognized the accused persons both at the crime scene and at the identification parade. Counsel added that P. W.2 D/1P Waiswa Paul who conducted the Identification parade testified that at the identification parade which was conducted at Mukono Police Station, the victim, Mbabazi Sheillah, touched on Mubiru that is A3 and also Kidogwa who is A4. That when he asked the victim how she managed to identify them, she responded that she was able to identify them by their facial appearance. That this was also corroborated by the identification report which was tendered in and marked as PEx 6, which also confirms the identification. Both A3 and A4 appended their signatures on PEx6.

- 15 The prosecution counsel contended that the last ingredient of participation of the accused persons has also been proved through the above evidence. Counsel further averred that with all the direct and circumstantial evidence highlighted above and availed before this honourable court through the three witnesses as presented by prosecution before court, a *prima facie* case has been established against the accused persons. Counsel invited this honourable court to find so. - 16. In opposition, the accused's counsel submitted that it is trite law that prior to placing an accused person to his or her defence, the prosecution is required to have established a prima facie case against such accused person.

- $17.$ The accused's counsel argued that in the absence of any explanation to the contrary from the defence, the prosecution evidence does not establish the ingredients of the offence of rape. That it is not in dispute that there was unlawful sexual intercourse on the victim by assailants unknown to her. That the evidence of all the prosecution witnesses in the instant case does not establish participation of the accused persons. - 18. That P. W.1- Masombo Peter stated during his testimony that he asked the victim what had happened to her and she told him that she was raped but she did not know the assailants since she had just come into the village. That during cross examination and re-examination of P. W.1, he confirmed that the victim did not recognize the accused persons and that it was at 9:00 p.m. when there was darkness. That P. W.1 further confirmed during cross examination that he didn't know the accused persons and that he was seeing them for the first time. - $19.$ Counsel further averred for the accused persons that P. W.3-Mbabazi Sheilah testified during examination in chief when asked if she knows any of the accused persons. She replied that she recalls like two and she didn't know their names. That the two she recalled were A3 & A4 and that she didn't recall A1 & A2. - That P. W.3 further stated that it was one person who raped her. $20.$ That she said that it was a gang of many and she doesn't recall A1 & $\&$ A2 to be part of the gang. That during cross examination, P. W.3 also stated that she never knew the accused persons before the incident

$\overline{7}$ and that they were not friends. PW3 also stated that she didn't have any problem with A1 $\&$ A2.

- $21.$ Citing the case R v. Mwango s/o Manaa [1936] 3 EACA. counsel contended that the accused are not satisfied with the way P. W.2 conducted the identification parades as he did not follow and never complied with the law. Counsel added that every Police Officer conducting an identification parade should abide by the Rules of identification parade and should inculcate in himself or herself the practice of always abiding by the rules. That this will ensure that both the accused person and the court are satisfied with the conduct of the identification parade even if the accused may agree or not with the outcome of the conduct of the identification parade. - 22. Counsel asserted that the identification parade was conducted illegally and procedurally wrong as P. W.2 did not follow the particulars of conducting the parade as particularized on the identification parade reports. Counsel invited this court to disregard PEx6 & PEx7. - $23.$ It was added in submission for the accused persons that the prosecution has totally failed to prove the ingredient of the accused's participation in the commission of the above offence. Counsel recognizes that at this stage, the standard of proof is not proof beyond reasonable doubt as required for a fully - fledged criminal trial. - $24.$ The accused's counsel concluded that there is no evidence adduced against the accused persons to establish a *prima facie* case against them. That the prosecution evidence is insufficient and

inconsistent to require each accused person to be put on their defence for the offence of rape c/s 123 & 124 of the Penal Code Act. Cap. 120. The defence counsel submitted that the prosecution's evidence contains a lot of falsehoods, contradictions and inconsistencies, which go to the root of the case. Counsel prayed that it be disregarded.

$25$ Counsel stated that the Trial on Indictment Act, provides for acquittal of an accused person when there is no case to answer. The accused persons' counsel prayed that this court finds that the prosecution has failed to establish a prima facie case against the accused persons and that the accused persons be discharged and acquitted at this stage as it would be superfluous and against all the established legal principles elucidated above to have to put them to their defences.

#### Issue

Whether the prosecution has led sufficient evidence capable of proving each of the ingredients of the offence of rape $c/s$ 123 and 124 of the Penal Code Act, Cap. 120.

### Court's analysis.

$\overline{26}$ Section 123 of the Penal Code Act, Cap 120 defines rape as follows:

> "Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a

married woman, by personating her husband commits the felony termed rape."

- $27$ In order to put the accused persons on their defences to the indictment of rape, the prosecution must have led evidence of such a quality or standard on each of the essential ingredients. The ingredients are: - (a) carnal knowledge of a woman: - (b) the act was performed without the consent of the victim: - (c) that it is the accused who performed the unlawful sexual act on the victim - $28.$ Having carefully considered both parties' submissions above, this court will proceed to determine whether the prosecution has adduced evidence to prove each ingredient of the offence of rape.

### 1. Carnal knowledge of a woman.

Proof of this ingredient requires evidence of sexual intercourse between a male and female person in which there should at least be some slight penetration of the woman's vagina by the man's penis.

In the Kenyan case of **Nakholi v. Republic [1967] E. A. 337** it was stated on page 338 that "the lack of consent is an essential ingredient" in a charge of rape and this is so whether the complainant is a woman or a girl." The court then cited the definition of rape similar to that of Uganda's section 123 of the Penal Code Act, Cap 120 stated in paragraph 1 of this judgment. The court further stated thus:

"the two essentials are therefore carnal knowledge of a woman or girl and lack of consent and both these essentials

must be established by the prosecution and accepted by the court before a conviction for rape can be arrived at. It is a fact that age of the girl is material and that in some cases the girl may be of such tender years that mere proof of her age may be sufficient to establish the lack of consent on her part, as the girl would on account of her age be unable to understand what was happening and would not be able to consent as she would not know what she was consenting to. In such a case then, the age of the child would be evidence from which the court could arrive at the conclusion that the act was done without her consent, but the court would still have to find this as a fact before convicting of rape."

- 29. In the instant case, there is direct evidence of the victim P. W.3. Sheillah Mbabazi who testified that as she was making an alarm, A4 caught her mouth and A3 raped her by entering her private parts/using her. Her testimony was corroborated by the medical evidence PEx1 admitted during the preliminary hearing of the prosecution case, which findings at the victim's genitals are that; in the external vulva, the labias were bruised, tender and mildly swollen, and in the vagina, the vaginal wall were bruised, reddened and mild swelling at the vaginal orifice. The doctor concluded that the probable causes of the injuries in the victim's genitals was an erect penis. - Based on the above, I find that the prosecution has led sufficient 30. evidence capable of supporting a finding that, the victim Sheillah

Mbabazi was subjected to an act of sexual intercourse, if the accused chose not to say anything in their defences.

## 2. The act was performed without the consent of the victim.

$31.$ Regarding this ingredient, there is the direct evidence of the victim P. W.3. Sheillah Mbabazi who testified that A4 caught her mouth as she was making an alarm and A3 raped her. This testimony clearly involves use of force and was not discredited during cross examination. I find that the prosecution has led sufficient evidence capable of supporting a finding that Sheillah Mbabazi, the victim was subjected to an act of sexual intercourse without her consent, if the accused persons chose not to say anything in their defences.

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

$32.$ This ingredient is satisfied by adducing evidence placing the accused at the scene of crime. The evidence may be direct or circumstantial. In this case, there is direct evidence of a single identifying witness, P. W.3. Sheillah Mbabazi, the victim, who explained the circumstances under which she was able to identify the third and fourth accused as the perpetrators of the act. Where prosecution is based on the evidence of a single identifying witness, the court must exercise great care so as to satisfy itself that there is no danger of mistaken identity. (See Bogere Moses and another v. Uganda, S. C. Cr. Appeal No. I of 1997).

$33.$ In the instant case, P. W.3 testified that she was able to identify A4 who held her mouth and A3 who raped her. When asked whether it was her first time to see A3 and A4, she responded that she used to see them on the same route when going for work. Further, during cross examination, P. W.3 stated that there were only two people who participated in raping her and that A3 was the only person who was raping her without a condom and A4 held her mouth. She added that she recognized and identified A3 and A4 at the time when she was being raped. When asked whether she recalls A1 and A2, she testified that she does not recall or know anything about them and that she has no issue with them even if court releases them.

34 In my judgment, since the victim was able to identify A3 and A4 at the scene of crime, this court would have evidence sufficient to hold A3 responsible for the unlawful act of sexual intercourse with the victim without her consent and A4 liable as an accomplice to the offence of rape under section 20 of the Penal Code Act, Cap 120. Therefore, I find that a *prima facie* case has been made out against the $3<sup>rd</sup>$ and $4<sup>th</sup>$ accused that requires them to be put on their defence.

35 However, the evidence adduced by the prosecution does not in any way incriminate or place A1 and A2 at the scene of crime. Therefore, I find that no prima facie case has been made out against them requiring them to be put on their defence. Therefore, I find A1 and A2 not guilty of the offence of rape contrary to section 123 and 124 $\frac{124}{12}$ of the Penal Code Act, Cap. 120 and they are hereby acquitted. A1

and A2 should be set free forthwith unless they have other pending charges against them. I so rule and order accordingly.

This ruling is delivered this $31^{st}$ day of $12^{st}$ 2024 by


FLORENCE NAKACHWA JUDGE.

In the presence of:

- (1) Counsel Kubokwe Kennedy, a State Attorney from the Office of Director of Public Prosecutions, for the prosecution; - (2) Counsel Ayubu Musubo on State Brief, for the accused persons; - (3) Mr. Nyanzi Ali, the 1<sup>st</sup> Accused person; - (4) Mr. Byakatonda Fred, the 2<sup>nd</sup> Accused person; - (5) Mr. Mubiru Asuman, the 3<sup>rd</sup> Accused person; - (6) Mr. Kidogwa Salim, the 4<sup>th</sup> Accused person; - (7) Ms. Pauline Nakavuma, the Court Clerk.