Uganda v Oringa (Criminal Session Case 385 of 2021) [2024] UGHC 777 (26 August 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA SITTING AT GULU

# CRIMINAL SESSIONS CASE No. 0385 OF 2021

UGANDA...................................

#### **VERSUS**

#### 10

ORINGA JUSTINE AKENA...................................

## Before Hon. Justice Collins Acellam

#### **JUDGMENT**

The accused person in this case, Oringa Justine Akena, aged 69 years, is indicted with one count of Aggravated Defilement c/s 129 (3), (4) (a) and (c) of the Penal Code Act. Under this section of the

Penal Code Act, any person who performs a sexual act with another person who is below the age of 15 14 years, where the offender is a parent or guardian or a person in authority over the person against whom the offence is committed commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

It is alleged that, the accused, Oringa Justine Akena, in the month of August 2021 at Coopil Village, $20$ Unyama Subcounty in Gulu District, being a person in authority over Lagum Mercy, performed a sexual act with the said Lagum Mercy, a girl aged 11 years.

The accused person pleaded not guilty at his arraignment.

The victim in this case, a female juvenile aged 11 years is the daughter of Nyapolo Florence who at the time was cohabiting with the accused person. Together with her maternal aunt, Adok Rose, who is physically disabled and dumb, they lived in the same homestead at Coopil Village in Unyama Subcounty in Gulu District.

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$\mathbf{1}$

It was the testimony of the victim that sometime during the month of August 2021, at 14:00hrs, 5 while her mother was away at the hospital, the accused called her to his house. When she got there, he pulled her to his bed and had sexual intercourse with her.

She felt pain and cried but the accused after satisfying his desires warned her and threatened to cut her with a panga if she revealed the incident to anyone else. She returned to the kitchen and revealed 10 the incident to her aunt who also started crying. During the course of the same week while she was playing, the accused again called her to his room and had sexual intercourse with her. On another occasion still during the month of August, while she had gone to sleep with her aunt at about 20:00hrs he again called her to his room and had sexual intercourse with her and ordered her to return to the kitchen where she again informed her aunt. 15

In September 2021, when her aunt went to live in Kiceke Village in Paicho Subcounty, she informed her brother and paternal uncle to the victim, one Okeny Mathew that the accused had defiled the victim on three occasions and when the victim confirmed the information to her uncles, the matter was reported to the police and the accused was arrested on a charge of aggravated defilement. The victim's uncles to whom the matter was reported and in turn reported to the police did not give evidence at the trial. The victim was examined on Police Form 3A and found to be a minor with a healed tear at the hymen. The accused was also examined on Police Form 24A and found to be an adult with a normal mental status and also HIV negative.

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The accused person in his defence denied the allegations and called the evidence of DW2 Agenorwot Nancy, the victim's elder sister and DW3 Nyapolo Florence, the victim's mother.

#### Determination.

The prosecution has the burden of proving the case against the accused beyond reasonable doubt. 30 The burden does not shift to the accused person and the accused 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).

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By his plea of not guilty, the accused put in issue each and every essential ingredient of the offence $\mathsf{S}$ with which he is charged, and the prosecution has the onus to prove each of those ingredients beyond reasonable doubt. (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. However,

it is trite law that any doubts in the case should be resolved in favour of the accused person. (Mancini 10 Vs DPP (1942) AC 1 and Abdu Ngobi Vs Uganda; Supreme Court Criminal Appeal No. $10/1991$ ).

For the accused to be convicted of Aggravated Defilement under section 129(3)(4)(a) and (c) of the Penal Code Act, the prosecution must prove each of the following essential ingredients beyond 15 reasonable doubt;

1. That the victim was below 14 years of age.

- That the accused person is a person in authority over the victim. $\overline{2}$ . - That a sexual act was performed on the victim. $3.$ - 20 4. That it is the accused who performed the sexual act on the victim.

The first ingredient of the offence of aggravated defilement is proof of the fact that at the time of the offence, the victim was below the age of 14 years. A birth certificate is the most reliable way of proving the age of an individual. In this case a birth certificate was not produced in evidence in proof of the victim's age. The court must therefore rely on other evidence to prove the victim's age. Courts have held that there are other ways of proving the victim's age. This includes the testimony of the parents of the child, medical evidence or the court's own observation and commonsense assessment of the age of the child. (See Uganda v. Kagoro Godfrey H. C. Crim. Session Case No. 141 of 2002).

In this case, PW1, Inspector Okello Alphonse, a Medical Clinical Officer attached to Gulu Police Health Centre III examined the victim on Police Form 3A on 13/09/2021. The medical 30 examination report was admitted in evidence as Exhibit PEX1. His opinion was that the victim was of the apparent age of 11 years based on her dental eruption and secondary sexual characteristics.

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The victim herself testified in court and court observed that she was a child of tender years. A voire $\mathsf{S}$ dire was conducted before her evidence was received. In her testimony she told court that she was born in 2010 and that she was 13 years old at the time, and a pupil in Primary 6 at Voice of Hope Primary School at Kabedopong in Gulu City. Although there was no birth certificate adduced at the trial, based on the evidence available this court finds and holds that this element of the offence has been proved beyond reasonable doubt.

The second element of the offence requires proof that the accused is a person in authority over the victim. The Penal Code Act does not define who a parent, guardian or a person in authority is in the context of the offence of aggravated defilement. However, 'a person in authority' may be understood to refer to relational power between a family elder and a younger relative. It may also be understood as any person acting in the position of a parent to the victim, or any person responsible for the education, supervision, or welfare of the child.

In Uganda Versus Kayinamura Andrew, High Court Kabale Criminal Session Case No. 0238 of 2019, Hon. Justice Kazibwe held that; "My appreciation of the term 'A person in authority' in the context of section 129 is that it refers to the relational power between a family elder and a younger relative. The accused may not have for long interacted with the victim as he contends, but as a grandfather who used to visit their 20 home and who was respected as such, he wielded authority over his granddaughter." The judge also cited Uganda V Fualwak [2018] UGHCRD 110 where Hon. Justice Mubiru Stephen described the 'authority' to reside in: "any person acting in loco parentis to the victim, or any person responsible for the education, supervision or welfare of the child, and the persons in fiduciary relationship with the child characterized by a one sided distribution of power inherent in the relationship, in which there is a special confidence reposed in one who in equity and good conscience is bound to act in good faith with regard to the interest of the child reposing the confidence."

The evidence in this case is that although the accused was not the biological father of the victim, they lived together as the accused was cohabiting with the victim's mother Nyapolo Florence. In her own testimony she referred to the accused as her father and she told court that they lived in the same homestead together with her mother and her maternal aunt Adok Rose. The accused in his own testimony does not dispute this and there is no other evidence to controvert this fact. I

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accordingly find that the accused was indeed a person in authority over the victim and that this $\mathsf{S}$ element of the offence is proved to the required standard.

Having found that the victim was below the age of 14 years and that the accused was a person in authority over the victim, the next ingredients requires proof that the offence was committed and that it was committed by the accused person.

To prove that the offence was committed the prosecution must prove that a sexual act was performed $10$ on the victim. A sexual act or sexual intercourse has been defined under section 129 (7) of the Penal Code Act to mean penetration of the vagina, however slight by the sexual organ of another or unlawful use of any object or organ on another person's sexual organ.

Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence, (See Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 15 (Unreported). The slightest penetration is enough to prove the ingredient.

In Hussein Bassita vs. Uganda; S. C. Crim. Appeal No. 35 of 1995, the Supreme Court of Uganda explained further that; -

- "The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse may be proved by the victim's own evidence and corroborated by the medical evidence or other evidence. though desirable it is not a hard and fast rule that the victim's evidence and medical evidence must be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case such evidence must be such that it is sufficient to prove the case beyond reasonable doubt." - 25 The victim in this case, though a child of tender years, gave her evidence on oath after a voire dire was conducted and court found that she is possessed of sufficient intelligence to understand the nature of an oath and the duty to tell the truth.

In her sworn testimony, she told court that sometime in the month of August 2021 at 14:00hrs, the accused person called her to his house and told her to sit on the bed and he used his 'susu' to have 30 sexual intercourse with her. According to her the incident happened when her mother was away at the hospital, and they remained at home with the accused and her maternal aunt Adok Rose who is

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- physically disabled and dumb. During the trial the witness was given an opportunity, and she drew $\mathsf{S}$ on a piece of paper what she was referring to and she told court that the object was found in the accused person's groin, and he put it in her private parts. With the help of anatomical dolls, she was able to demonstrate the act. She also narrated that while this was happening she was lying down, and she felt pain in her 'susu'. She did not make an alarm and after the incident she went back to her aunt who was in another house, and nothing happened. She informed her after two days that 10

The other evidence the prosecution sought to rely on was the evidence of the victim's maternal aunt

the accused had sexual intercourse with her.

- Adok Rose who was at home at the time of the alleged offence. As earlier indicated this witness was physically disabled and dumb. Being unable to speak her evidence was taken with the aid of one 15 Arum Charles, a Sign Language Interpreter with Gulu Disabled Persons Union. According to her the incident happened at night and she heard the victim crying and calling her for help. She then came complaining of pain in the lower abdomen and told her that she was defiled by the accused who threatened to cut her with a panga if she informed anyone. - 20

The medical examination of the victim on 13/09/2021 revealed that she had healed tears on the vaginal hymen at 12, 3 and 8 O'clock points. The medical examination report comprised in Police Form 3A by PW1, a Medical Clinical Officer was admitted as prosecution exhibit PEX1. According to the report the probable cause of the injury was penile penetration during sexual intercourse. In cross examination the victim told court that although she could not remember the first time the accused person put his 'susu' in her she could remember the second time. That it was a Friday, and it was $7/8/21$ and that she told her aunt after the first incident.

In his defence the accused person testified that it was the victim's uncle who threatened her to admit 30 that he had performed a sexual act on the victim. He called DW2, Agenorwot Nancy, the victim's sister who testified that they lived together and slept in the same house with the victim. Her testimony is that if the offence was committed the victim would have told her about it. She only got to know about it when the accused was arrested and when she went to the police she was not allowed to speak.

- DW3, Nyapolo Florence on the other hand told court that for the period she has known the accused, $\mathsf{S}$ she has known him to be incapable of performing a sexual act. She testified that while she was away at the hospital, she returned home to pick the victim to help her but found when she had been taken away to unknown place. She was only surprised to see her returning with her paternal uncles Ocora Silver, Okeny Mateo and Otto Innocent and the accused. They later told her that the accused had - had sexual intercourse with the victim, and they later had him arrested and detained. She says the 10 accused person cannot erect and cannot have sex. That she asked the victim whether the allegation is true, and she told her that one of her uncles threatened her to admit that the accused had sex with her. - The accused person in his testimony also denied committing the offence. In his testimony he told 15 court that it was only on the 11<sup>th</sup> of September, 2021 when his brother-in-law, one Omach Silver came to his home at 6:00am to inform him that his wife's condition had deteriorated and that he needed to go and see her. He was only surprised when he brought police who arrested him on allegations of defiling the victim. - 20

The victim in this case, though a child of tender years, gave her evidence on oath. She was 13 years of age at the time she testified. Although she was a child of tender years she testified on oath after a voire dire was conducted and court found that she was possessed of sufficient intelligence to understand the nature of an oath and the responsibility to tell the truth. He evidence need not be corroborated.

In Ntambala Fred v Uganda, Criminal Appeal No. 34 of 2015;[2018]UGSC 83, the Supreme Court reiterated the need to discard the requirement for corroboration when it stated that even in sexual offences, a conviction can be solely based on the testimony of the victim as a single witness, provided the court finds her to be truthful and reliable. That what matters, even in such cases, is the quality, not the quantity of evidence. In the supporting opinion on that particular point, Tibatemwa Ekirikubinza, JSC, further explained and emphasized that:

"In Basoga Patrick vs. Uganda, Criminal Appeal No. 42 of 2002, the Court of Appeal No. 42 of 2002, the Court of Appeal held that the requirement for corroboration of evidence

in sexual offences is discriminatory against women and is therefore unconstitutional. The Court cited with approval the finding in the Kenyan case of Mukungu vs. R (2003) 2 EA that: "the requirement for corroboration in sexual offences affecting adult women and girls is unconstitutional to the extent that the requirement is against them qua women or girls."

It was further emphasized that the evidence of a victim in a sexual offence must be treated and $10$ evaluated in the same manner as the evidence of the victim of any other offence. That as it is in other cases, the test to be applied to such evidence is that it must be cogent.

The victim in this case gave her evidence on oath and told court that the accused person performed a sexual act on her on three occasions. Her evidence stood the test of cross examination, and she 15 maintained her stance. She told court that although she did not remember the first time the accused person put his susu in her she could recall that the second time was on a Friday, and it was on 7/08/2021. She also told court that she informed her aunt after the first incident. Her aunt Adok Rose also told court that one night she heard the victim crying while in the house of the accused and calling her for help. She did not go to help her because she was scared of the accused person. 20 She then returned complaining of pain in the lower abdomen and told her that the accused had defiled her, and her private parts were paining.

Notwithstanding that there is no legal requirement for corroboration, I find the evidence of the victim is corroborated not only by the testimony of PW3 but also the medical report that she sustained injuries that were probably caused by penile penetration during sexual intercourse. This goes to consistency in the evidence of the victim that a sexual act was performed on her. The best evidence in sexual offences of this nature is the credible account of the victim who is in the best position to explain the circumstances surrounding the commission of the offence.

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In the same way, the testimony of PW3 is equally good evidence capable of supporting the evidence of the victim although she is a disabled person who testified with the aid of a sign language interpreter and notwithstanding the assertion by DW2 that she was of unsound mind.

In Patan Jamal Vali Vs. The State of Andhra Pradesh, dated 27. 04. 2021 https://indian $\mathsf{S}$ kanoon.org/doc/138189653 the Indian Supreme Court had looked at a disabled person witness, and stated as follows:

> "The testimony.....of a disabled witness....cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-à-vis their able-bodied counterparts. As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight."

The defence in their submissions pointed to inconsistencies and contradictions in the prosecution evidence. In Wepukhulu Nyuguli vs. Uganda, Criminal Appeal No. 21 of 2001, the Supreme

Court discussed the law on contradictions and inconsistencies and held that: "It is trite law that minor inconsistencies, unless they point to deliberate untruthfulness on the part of the prosecution witnesses, should be ignored and that major ones which go to the root of the case, should be resolved in favour of the accused. (See Alfred Tajar-V-Uganda, Cr. Appeal No. 167 of 1969 EACA (Unreported)."

20 I consider the inconsistencies pointed out by counsel for the accused as being minor and inconsequential and I do hereby ignore them. I do find that there is ample evidence proving that the victim was sexually assaulted.

The last ingredient the prosecution has to prove is that it is the accused who committed that offence. 25 Proof of participation requires the prosecution to lead evidence, direct or circumstantial placing the accused person at the scene of crime as the perpetrator of the offence.

The victim testified that on the day of the alleged incident in the month of August, 2021 when her mother was away, they remained at their home with the accused and PW3. That at about 1400hrs the accused called her to his house and asked her to sit on the bed. He then had sexual intercourse with her, and she left and returned to her aunt, and nothing happened. She only reported to her aunt after two days.

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PW3 who was at home with the victim at the time of the alleged incident testified that the incident $\mathsf{S}$ happened in the night, and she heard the victim cry for help from another hut. She later came to her complaining of pain in the lower abdomen and told her that she was defiled by the accused person. She maintained that the incident happened only once, and the victim reported to her immediately.

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On the other hand, the accused, DW2 and DW3 dispute that the offence took place. DW2, the victim's sister casts doubt on whether the accused committed the offence. She maintains that had the accused committed the offence the victim would have told her as they were staying in the same home and sleep in the same house. Her testimony relates to events in September, 2021 when the accused person was arrested but she insists that the accused person did not commit the offence.

It is also her evidence that PW3 Adok Rose is not mentally sound. She got to know about the case 2 days after the arrest of the accused and when she went to the police she was not given a chance to talk.

DW3 Nyapolo Florence is the mother of the victim and the wife of the accused. Her testimony is that for the time she has known the accused, she has known him to be impotent, incapable of erecting and therefore unable to have sexual intercourse.

That while she went to the hospital, she left the victim at home with the accused with her other 25 daughter Agenorwot Nancy (DW2) and her sister Adok (PW3). When she went home to pick the victim to help her when she went for review she found she had been taken away to an unknown place. It is only on Friday that she saw the victim coming with her brothers Ocora Silver, Okeny Mateo and Otto Innocent who were also in the company of the accused. When she asked the accused he told her that he did not know why her brothers had brought him. When she asked them, 30 they told her there was no problem and told her that they were taking him, and he will return. She later learnt that he had been detained and she was later informed that he had sex with the victim. By that time the victim had been hidden from her and for a month she did not know where she was. She only saw her at police when she was making her statement. At that time, they did not allow her

$\mathsf{S}$ to speak. It is only after one month and a half when the accused had been remanded that one Otto Innocent brought the victim to her and she asked her if the allegation was true. She confided in her that when her uncle picked her, he threatened her to admit that the accused had sex with her.

Although the victim is the only identifying witness, I am satisfied that she positively identified the accused person as her defiler. She testified that the incident took place on three different occasions, 10 one of which he told her to go to his bed and he had sex with her from his bed. The accused was well known to the victim as she was staying at his home and by its nature, sexual intercourse is done when the people involved are together. There is therefore no possibility for a mistaken identity of the accused.

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$\overline{a}$

I reject the defence of the accused that he is impotent, as being a mere fabrication and an afterthought. If it were true, such a fact should have been put to the victim who personally experienced the sexual assault in the hands of the accused person. Possibly, the defence did not put that to PW2 for fear of being embarrassed by the answer she would give. If it were true, at the police or at the time of being medically examined, the accused ought to have complained to the medical personnel who examined him since impotence is an invisible state and a fact only known to the person affected.

That notwithstanding, there is no requirement under the law that a man must erect for him to commit the offence of defilement. Similarly, the allegation by the accused that his brothers in law 25 are the ones who incited the victim to accuse him is unbelievable. There is no evidence to show that the accused person's brothers in law had any grudge against him so as to have him falsely accused of a grave offence as this one and to the extent of involving their young and innocent niece. To the contrary, there is evidence of a strong love relationship between the accused and his wife as she came

and gave evidence, though unhelpful, in his support. A strained relationship between a husband and wife would usually be the source of tension between such a husband and his in-laws.

I therefore find that prosecution has proved beyond reasonable doubt that the accused is the person who sexually assaulted PW2.

In the final result, I find that the prosecution has proved all the essential ingredients of the offence $\mathsf{S}$ beyond reasonable doubt, and I hereby convict the accused for the offence of aggravated defilement c/s 129 (3) and (4) (a) & (c) of the Penal Code Act.

Dated at Gulu this 26th Aufrest 2024. $10$

Collins Acellam

$15$

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Judge.