Uganda v Rwamwhizi (Criminal Session Case 262 of 1992) [1993] UGHC 50 (7 October 1993)

Full Case Text

Mr Juntice F. M. S. Egouda-Nieude IC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL SESSION CASE NO 262/1992 AT THE SESSION TO HOLD

IN MASAKA

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ UGANDA................

<table>

RWAMWIHIZI A ..................................

BEFORE:

**Note:** 11

$\sim$ $\sim$

$\sim$ $\Delta$

$\tau_{\rm c} \in \mathbb{N}^2$

$\mathcal{L}_{\mathcal{A}}(x)$

$\cdot : \mathbb{S}$

$\sim$

$\overline{1}$

## HONOURABLE MR. JUSTICE I. MUKANZA

VERSUS

## JUDGMENT

The accused in this case is known as Augustine Rwamwihizi. He stands indicted on two counts of defilement contrary to section 123 (1) of the penal code. In the first and second counts he is alleged to have defiled one Nakubulwa Amina and Samila Nasaka respectively. The particulars being that during the month of September 1990 at a place called Kaddugala the accused persons unlawfully carnally knew both Nakubulwa Amina and Samila Nasaka girls under the age of eighteen years.

The prosecution in an endeavour to prove its case called in aid the evidence of about seven witnesses, The evidence, Miti Sakulu and that of Police consitable

Mugisha were admitted at the preliminary hearing under S 64 of the Trial on indictment decree (Deeree 26 of 1971) and both were christened as prosecution witnesses PW1 and PW2 respectively.

The accused also gave evidence on his own behalf and called no witne-.sses.

The prosecutions case was that Amina Nakubulwa $P\mathbb{C}^4$ aged 10 years Samula Nasaka PM5 aged 12 and Muhammed Matovu PW6 aged 14 were sisters and brother respectively. They used to stay with their mother called Aida Nasirye PW7 at a village called Kaddugala.

In September 1990 during the day time they were at home on the road in order to go and see off their mother PM7 who was going to attend burial $\bullet n$ the village. At that time the accused person who was seated at their home advised them to return home or else they would be knowked down by speeding cars. All of them complied and returned home. $\ldots$ $\ldots$ $\ldots$ $/2$ $\mathcal{A} \times \mathcal{A} \rightarrow$

On reaching home the accused instructed PW4 to enter inside the house, The $\overline{\phantom{a}}$ /latter complied\*. The accused who was already inside the house ordered Samila PW5 and Matovu PW6 to keep outside. Infact the accused instructed Matovu to caugh if he saw any one coming, While inside the accused who was seated on a chair invited Amina $\mathrm{P}\mathcal{W}^{\mathrm{L}}_1$ to sit on his thighs, He removed her knickers and also removed his trousers and Underpants and $\mathcal{L}(\mathcal{A}) = \mathcal{L}(\mathcal{A}) + \mathcal{L}(\mathcal{A}) + \mathcal{L}(\mathcal{A}) + \mathcal{L}(\mathcal{A}) + \mathcal{L}(\mathcal{A})$ separated her legs. The accused then got his penis and entered it into her Vagina, The accused used to get his penis and enter/into PW4's Vagina on and off on several times. She felt much pain when he did with it the accused threatened to bewitch her/akitambo and also cut her with a panga and throw her in the jungle if he revealed the matter, When the accused said so PW4 got scared. She feared a Kitambo because the same would cateh her and the witness would turn into a cannbal, The accused told PW4 not to reveal the matter to PW7 and promissed to give her money and Sugar Cane to chew. PW4 left the Accused inside and the latter asked her to call in her Sister Samila PT5 who also went inside the house.

$\mathcal{L}$

The prosecutions case futher showed that when PW5 went inside the accused also sexually intercoursed her (Samila) using the same method as he/applied to Amina Except PW5 emphasized the fact that the accused person sexually intercoursed her for every longperiod and this time the accused sexually intercoursed her while squating in the corner of the house, PW4 was positive that the accused held his penis and inserted it inside and started making the movement, She feldt much pain and threatened the accused also to harm her by cutting her with a panga if she made any noise, The rest of the girls testimony was similar to that of her sister PW4 as regards the threat of being bewitched with bitambo. She was positive that after the accused had finished with her he told her to go out and call for Mohammed Matovu PW6.

The testimony of PM6 was similar to that of PM4 and PM5 as is what happened before the girls went inside the house. He was consistent that when PW4 and PW5 had got out the accused invited him inside $\ldots$ /3

The accused made him to sit on his lap, He did so the house. because the accused had just promissed to give him medicine, He sat PW6 testified on his thighs for a very short time and that was all. that he did not know what happened to PW4 and PW5 when they were inside with the accused person.

$\mathfrak{Z}$

$\cdot$ $\cdot$ $\cdot$

$\cdot$

The prosecution case further showed that after the accused had sexually intercoursed PW4 and PW5 while inside the house he invited the girls and PW6 to accompany him in the forest so that he could get them medicine for their mother. The accused invited PW4 to accompany him to the forest first leaving PW5 and PW6 behind and when they reached there the accused sexually intercoursed PW4 once more. He then sent her away after she had been intercoursed $\angle$ asked PW4 to call PW5 PW5 was also sexually intercoursed by the accused person. After the accused had sexually intercoursed both PW4 and PW5 in the forest he invited PW6 to go with him in the forest where the accused made PW6 to sit on his thighs and narreted to him a certaim story later the accused person ordered them to go back home. The incident was not Aida Nakasirye reported by the children immediately to $PW7\angle$ their mother. It appeared PW7 got a wind of the incident through other people who were not called $P\hbox{\ensuremath{w}}\xspace7$ however on realising what had happened she had $P\hbox{\ensuremath{w}}\xspace4\&$ as witnesses. /punished/being caned because of failing to report the incident to her. PW7 had however known the accused as a porter on the village and from her home to that of the accused was a distance of about 250 yards, The accused used to get her some herbs for her illness. The witness reiterated that she got the report about the defilement after a week had passed. And on interviewing the children the latter told her that the accused sexually intercoursed PW4 and PW5 and that at the same time innoculated them, PW7 explained to the court that the children told her that the innoculations were against snake bites. That that was the information given to the children before defilement but that after the girls had been defiled the accused changed his story he told PW4 and PW5 and PW6 that if they disclosed the incident they would get/ catch Bitambo. PW7's evidence further showed that the children did not disclose the incident to her because of that fear. At that juncture the court recalled PW4, PW5 and P 6 inorder to look $... / 4$

at the innoculations, Those cuttings were there. he 5ir s erentually taken to Masaka Hospital for midical examination, The doctor PWJ later esamined Amina Birungi PW4 on 20/9/1990. He found that her hymen was intact, She had some mild valve Vagina inflamation, He thought rape was tempted but the penis did not penetrate in the Vagina.

The evidence further showed that on the same day PW3 examined Samila Nasaka PW5 and found that her hymen was perforated. The doctor explained what he meant by perforation he meant that the girl had been defiled. And that he did not indicate the ages of the witness on the medical form because there was no provision for it.

to The admitted evidence of Mutasikula PV'/1 Defence Secretary was/the effect that he arrested the accused person on the Allegation- that he had defiled the daughters of Aida Nasirye and escorted him to Mpungwe police post and handed the accused to the policeman on the counter Also the Victims and their mother were also handed over to the police.

Where as the evidence of PC Mugisha PW2 was to the effect that he was working at the police post at the counter when he recieved a report of defilement made by the mother of the victims, They came with the RC I Sangomo Village who escorted the accused persons, He rearrested the accused person and entered the information in the station Diary.

In frid evidence the accused testified th 't he knew Aida Nakasirye and also knew Amina Samila and Muhammed Matovu, He denied ever working for Aida but admitted that he had ever been to her home several times and used to give her medicine for her illness, She never gave him any money for the medicine he supplied her but she gave him money.for Transport to and from Kaddugala about shillings 3000/= He brought the medicine to Aida and the later had agreed to pay her Shillings'4500/= He innoculated the three children including one Jane for prevention of snake bites, later in September 1990 he went to claim his money. He found her present hut the children were on the affirs of thier own On the following day he was arrested and taken to Mpungwe Police post together with the children. Eventually he was transferred to Masaka.

............... /5

He denied the offence and was emphatic that the children gave evidence against him because they did not want her mother to pay the moncy.

Before I proceed to evaluate the evidence on record I warned the gentlemen asserssor as I warn myself now that the burden is on the prosecution to prove the guilt of the accused persons beyond reasonable doubt. This burden does not shift except in few exceptional ciroumstances and the instant case not being one of the few exceptions. See Woolmington Vs DPP 1935 AC at P 462. Sec also Uganda Vs Sebyala 1969 EA 204, Alfonse VR 1973 (4) EA U 73

In case of this nature the prosecution has got to prove the following ingredients of the offence.

- 1. That the victims in this case were girls under the age of 18 years and that the accused person had knowledge of that fact. - 2. And that the victims were carnally known ie that they were sexually intercoursed. - 3. That the Act of Carnal knowledge was unlawful. - 4. And finally that the accused person was recognised as the person who sexually intercoursed the victims.

As regards the first ingredient of the offence there is authority to effect that in defilement cases the prosecution must prove the age of the complaint and the fact that the accused knew that the complaint was under 14 years of age for to act otherwise would be creating the offence of defilement at offence of strict liability See Uganda Vs Joseph Mulindwa 1975 HCB P 206 as per Sekandi J. As Le them This case.was decided before the Penal Code emendment statute of 1990 which enhanced the ages of the victim from $14$ to $18$ years Be that as it may be the prosecution has to prove that the victim was under 18 years. The victims were not medieally examined by the doctor inorder to ascertain their ages but there was admissable evidence from their mother PW7 who testified to the effect that PW1 was aged 10 years where as Samila PW5 was aged about 12 years. Even the victims themselves testified

. . . . . . . . . /6

to the effect they were far below the ages of 18 years. $PM$ testified that she was aged 10 years whereas PW5 testified that she was aged only eleven years. In the absence of evidence to controvert the testimonies of PW4 and PW5 and PW7 I am of the view that it is safe to conclude that PW4 and PW5 were far below the age s of 18 years. The accused did not Shather dispute the ages of the victims. As to whatever the accused knew that the victims were under the age of 18 years, Infact no evidence was led to show that the accused knew that the victims were under 18 years. The accused was an old man aged about 57 years comparing his age with those children of tender years at least at the time the alleged crime was committed three years age he ought to have known that both PW4 and PW5 were 18 years to hold otherwise it would be very difficlt for under the prosecution to adduce the evidence to prove that the accused persons knew that the victims were under age of 18 years.

In the end 1 find that the girls were under the age of 18 years, and that fact was known to the accused persons.

As to the second ingredient whether the girls were carnally known ie whether they were sexually intercoursed. Here again we have to look at the testimonies of the victims themselves. PW4 testified that she was sexually intercoursed on two occassions first in the house and in the forest. PW5 also gave a similar version. The doctor who medically examined PW4 and PW5 shortly after the accident found that there was no sign to show that PW4 was carnally known but ohly that there was an attempt to do so. He testified that her hymen was intact but had mild Valva Vagina inflamation, Where as when he examined PUS found that her hymen had been perforated of indicating that there had been penetration the male organ into that of the female organ as laid down in the case of upar V Uganda 1971 EA P 98.

I therefore find that there was an attempt on the part of PI4 to have her sexually intercoursed but P05 was carnally known. This is therefore disposes of the second ingredient of the offence.

The other ingredient the prosecution had to prove was whether the act was lawful. The offence is committed by a person ...... /?

$\mathbb{E}_{\mathcal{A}}\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\left(\mathcal{A}\right)\$

whe defiles the child below the ages of 18 years, I have already held that victims PW4 and PW5 Samila were for below the age of 18 years. If any one Sexually intercoursed PW4 and PW5 definately such canal knowledge must be unlawful.

$\overline{7}$

This now brings me to the last ingredient of this offence whether the accused person was the person who sexually intercoursed PW4 and PW5. PW4 and PW5 were children of tender years they $\rm g_{\rm a}ve$ sworn evidence after conducting the vondire. PW4 testified that the accused person sexually intercoursed her and so did PW5. The doctor who medically examined them shortly aferwards found that there was no penetration of the male organ into that of the female organ in respect of PW4 and that there was merely an attempted defilement, whereas when PW5 was examined, PW3 found that the hymen had been perforated, He therefore concluded there was an attempted defilement on PW4 and that actually PW5 was defiled. The accused denied the allegation. Then who did it?

It is my consideration opinion that $PW3$ 's testimony acted as corroboration to PW4's testimony that there was an attempt to defile the latter, Als. PW3's testimony acted as corroboration to PW3's evidence that she was defiled. Also PW6's evidence that is the evidence of the boy who was together with $P34$ and $P95$ , who witnessed when the 2 girls were invited in the house and later in the forest circumstantially corroborated the testimony of PW4 and PW5 to the effect that they were defiled.

The accusing facts point to no other thing other than that $\overline{a}$ the girls were defiled.ie there was an attempt to defile PW4 and that PW5 was actually defiled.

The accused in his testimony denied the allegation He admitted that he had been to PW7's home on several occassions and that he had known PW4, PW5, PW6 and PW7 before. He also gave evidence to the effect that he used to supply medicine/herbs to PW7 for her illness. That evidence cerroborated PW7's testimony that the accused used to give her medicine /herbs because she was suffering from blood pressure. He denied that PW7 paid him shs 3000 for the service rendered but contended that the money was for his transport to and from his home and that he

$\bullet$ .

$...$ /8 still demanded Shs 4500 for the medicine given to PW7. The actuated also testified that the children testified against him simply because they did not want their mother to pay that money and also testified that on the date in question he went to demand his money and also that he innoculated the children because of snake bite.

My finding is that the accused was an intimate friend of PW7's The children knew him very well. His home being on the familay. that that same village with of PW7 PW4 and PW5 separated by 250 yards. The accused took advantege of the tender ages of PM4, PW5 and his cordial relations with the family to behave the way he did. Birungi was only 7 years when the accused attempted to defile her where as Samila $P\#5$ was only 8 and their brother Matovu PW6 was only 11.

I do not therefore believe the accused person that PW4 PW5 and PW6 testified the way they did because they did not want their mother to pay to the accused the debt of shillings $4500/$ = as claimed by the accused person. I believe PW/ that she did not have any debt with the accused, The accused therefore told a lie to this court. also do not believe the accused person that he innoculated PW4 PW5 and PW6 as a prevention against snake bites, The innoculations were manouvres ; on the part of the accused person to instil some calculated kind of fears to these children not to report the incident to their mother on the pretext that if they did so they would catch/get Bitambo which would turn them into cannibals, and I am of the view that this was the sole reasons why PW4, PW5 and PW6 did not report the incident Immediately to their mother. The court did look at those innoculations I agree with the submissions by the learned state Attorney that the Accused invited PW6 Matovu to sit on his thighs both in the house and in the forest to show to the boy PW6 that when the forest he called his sisters in the house and in they merely sat on his thighs and did nothing beyond that. ie He never defiled them. I am of the opinion that the prosecution witnesses told this court the truth. It is also not true that shillings 3000 supplied to the accused person was given to the latter for his transport. $\ldots \ldots / 9$

It was meant for the medicine given to PW7 for her illiness. My finding is that the accused told a lot of lies to this court inorder to exonerate himself from the emberrasing sisuation in which he found himself. He thought that the children being of such tender years would not reveal the incident because of his threats.

$\overline{9}$

However PW4 and PW5 were children of tender years. There is authority to the effect that whilist there is nothing in the evidence ordinanee to require corrobotation of the statement of girl of tender years as to sexual offence against her it is the practice to require corroboration of the evidence of a child complaint in the case of sexual offence. ( It is at least equally necessary in the case of a charge possibly involving the death penalty which had its origin in the alleged commission of sexual offence) See RV Kostnant Kirumunyo 1943 10 EACA. Also in the case of RV Leohard Bin Ngimbwa 1943 10 to ACA PAGE 113 There it was held that the evidence of a child given, not path, but upon affirmation as required Section 146 of the Criminal Procedure code Kenya strictly require to be corroborated yet a court should be very careful before acting upon such evidence See also a digest of EAST Africa Criminal case law 1897 - 1954 P 79.

However in R V S Morgan 1978 3 A E R Page 13 $\mathcal{I}_{\text{Was}}$ held that if sworn evidence is given by child complaint and a child witness the warning must be given with regard to the latter as well as the former.

And the case of Director of Public prosecution VS Hester 1993 AC 296 decides that the sworn evidence of a child may be corroborated by the unsworn evidence of another child and vice versa. That the creteria of determining when unsworn evidence may be given are sufficiency of intelligence and the comprehension of the duty of speaking the truth, That there are no cretaria for determining when it ceases to be necessary to give the corroboration warning in the case of the sworn evidence of the child. See cross on evidence 6th Edition Pages 223 and 224

**An Incident**

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The above referred to two cases are English decisions but are of persuasive authority to the instant case and I would follow them.

$10$

Be that as it may corroboration of the complaints stories although not essential in law as indicated above it is always in practive to be I directed the gentlmen Assessors that it is not safe to looked for. convict on the uncorroborated testimonies of the complainants but that if they were satisfied by the truth of the complainants evidenne they might after paying attention to the warning nevertheless advise me to convict.

From what has transpired above it is the considered opinion of this court that the accused person attempted to defile $\mathrm{P}\mathbb{V}{}^{1\!\!4}$ and that he infact actually defined PW5.

I do not therefore subscribe to the submissions of the leatned counsel for the accused that the children testified against the accused because they saw the accused as a suspect in custody. There was evidence that the accused committed the offence.

About the contradiction and or inconsistance in the prosecutions case for instance whether victims were examined soon after the incident or six days after the indidenct. There was also contradictions as to whether the accused had put on an Under wear when he called the girls in the house and extra. The law on imeonsistance and and discrepances is that only grave inconsistance if not explained satisfactorily will usually result in the evidence of witness being rejected, minor inconsistances will not have that effect unless they point to deliberate untruthfulness. See Isaya Bikumi Vs Uganda criminal appeal No 24/89 SCG Digest of criminal and civil case in the supreme and High couft of Uganda. . Majidu Boona vs Uganda CA Criminal Appeal No 1984 unreported, Uganda Vs Dusman Sabuni HCB Volume 13 1981 Page 1 Sekitoreko Vs Uganda 1967 EA P 531.

From what has transpired above and in agreement with the opinion of the gentlemen assessors I find that the prosecution has failed to prove beyond reasonable doubt that the accused defiled Amina Birungi a girl of $n$ under $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

$\overline{a}$

$\mathcal{L}(\mathcal{L}) = \mathcal{L}(\mathcal{L})$

$\ddot{b}$

$\cdots$ /11

person to defile Amina Birungi contrary to section 123 (2) of the penal The prosecution had proved that case beyond reasonable doubt. $\mathbf{I}$ code. find the secused guilty of that offence and I convict him accordingly. I do however find that the prosecution has proved beyond reasonable doubt that the accused committed the offence as per the indictment in court No2 That is defilement of Samila Nessaka a girl under 18 years of age contrary and in agreement on the gentle men assessor to section 123 of the penal code . $\angle$ I find him guilty of that offence and

I convict him accordingly.

## Summary

Count No 1 Accused is convicted of Attempted defilement of a girl Under 18 years of age contrary to section $123(2)$ of the penal code

Act.

Count No 2 Accused is convicted of defilement of a girl under age of 18 years contrary to section 123 (1) of the penal code.

$4$ just sin I. MUKANZA $\mathbf{1} \mathbf{1} \mathbf{1}$ $J \ U \ D \ G \ E$ $7/10/1993.$

$7/10/1993.$

Accused before court.

Mrs D. Lwanga for the State and Mr. Nyanza on state brief appears for the not be commission to committee of state.

$\mathcal{L} = \mathcal{L} \cup \mathcal{L}$

$\mathcal{L} = \mathcal{L}$

Assessor Mr. Dominic Wasswa and Mr. Tom Wasswa.

Court Judgment is delivered in open court and signed.

Mrs D. Ewanga - Iam not aware of any previous conviction of the accused person However the accused person committed two serious offences which in the first count carries maximum setence of 18 years imprisonment while in the second count the offence carries a death sentence although not mandatory given the nature of the offence and the manner in which they were committed by the accused person I pray that the sentence imposed be heavy punitive and dererent, The offence committed by the ..../12

accused person, calls for heavy sentence because such cases are alarmingly on the increase , It is the duty of the law to protect the members of the weak sex against such abuses. Both victims were sexually knew .. assaulted and we do not^the HIV presence but it would be atragedy to the family of the 2-victims if the -frirls contract /the aids, The accused pefson defiled Samila twice and the same day while Amina too young Accused tried for the first time and filed to penetrate. He however insisted to defile her the second time. The accused person is an extreme case He is a disagrace to our- society. I pyay that he is not given a chance io live in society again. At the time of the commission of the offence the &lt; accused person was aged about 5^ years of age. He was an old man, He would have been a good example to the victims and the young boy, what he did was not expected of a man of his age. I pray for a very heavy sentence.

Mr. Nyanzi - There is no doubt that the accused is convicted of serious offences. However I pray that taking into account that he is a first offender and an old man I pray that this court give:? him a punishment romensurate with the offences he committed- and that this court exercise its judicial discretion not to impose the maximum\*. £ny castodial sentence is fair in the circumstances. Taking into account the life expectation in Uganda the accused is not likely to live for a long time. &lt;

## REASONS FOR THE SENTENCE

Court has taken into account the submission by the learned counsels. The accused is a first offender. He has been in police custody may be since 1990, His family background is not known, He is however an old man aged about 57 years now. The first offence carries the maximum of 18 years imprisonment where as the Second count carries the maximum of death penalty. I am of the view that cases of defilement are on the increase in this country and more so when one looks at the aids scourage in this country, No one knows whether victims might have contracted the Aids disease, This would definately be a sorry state of affair to the Parents of these children, However I will exercise my /V

discretion by not imposing a death penalty in respect of the second offence. I would give the accused an opportunity to come back and live an honourable life if he will live up to that time.

## Sentence on the first count.

Attempted Defilement contrary to section 123 (2) of the penal code the accused is sentenced to 10 years imprisonment without corporal punishment.

## Sentence on 2nd Count.

Defilement contrary to section 123 (1) of the penal code the accused is sentenced to 14 years of imprisonment. Sentences are to run c oncurently.

R/A Explained.

U' -' iv 't r ' c. I. MUKANZA /\ JUDGE 7/l®/W3.