Wakilii

Uganda v Omirambe (Criminal Case 15 of 2018)

High Court · [2021] UGHCCRD 89 · 2021 Matter Remitted to High Court AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference from Chief Magistrate's Court under Section 206 of the Magistrates Court Act for High Court opinion on two questions of law arising from criminal proceedings
Decision
Matter remitted to High Court for trial on charge of aggravated defilement

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that Section 129A of the Penal Code Act does not create a distinct offence called child-to-child sex; the section only provides the procedure for dealing with child offenders charged with defilement under section 129. The accused was rightly charged with aggravated defilement contrary to section 129(3)(4)(a), which falls within the exclusive jurisdiction of the High Court, not the Chief Magistrate's Court. The matter was directed to proceed to trial before the High Court.

Outcome

Matter remitted to High Court for trial on charge of aggravated defilement

Facts

The accused Omirambe Julius was indicted for aggravated defilement contrary to sections 129(3)(4)(a) of the Penal Code Act. It was alleged that on 29 July 2014 at Nyabyeya village in Masindi district, the accused performed a sexual act with Fualal Juliet, a girl aged 12 years. Medical examination documents (PF 3A and PF24A) tendered as exhibits revealed that the victim was aged 12 years and the accused was aged 17 years. The trial judge, Justice Henrietta Wolayo, upon discovering the ages, determined this was child-to-child sex under Section 129A(2) and referred the file to the Chief Magistrate's Court for trial. The prosecution was dissatisfied with this decision and sought the opinion of the High Court under Section 206 of the Magistrates Court Act on two questions of law concerning the existence of the offence of child-to-child sex and the jurisdiction of Magistrate's Courts to try aggravated defilement.

Issues

  1. Whether there is an offence known as child-to-child sex under the Penal Code Act Cap 120.
  2. Whether the Chief Magistrate's Court or any other Magistrate's Court has jurisdiction to entertain the offence of aggravated defilement under section 129(3)(4)(a) of the Penal Code Act when the accused person is above 12 years of age.

Orders

  • Section 129A of the Penal Code Act does not create the offense of child-to-child sex; the section only provides the procedure for dealing with child offenders charged with defilement.
  • The accused person was rightly charged with the offense of aggravated defilement contrary to section 129(3)(4)(a) of the Penal Code Act.
  • The accused person shall be tried by the High Court.
  • The Registrar of the High Court, Masindi to transmit this ruling to the Chief Magistrate, Masindi, and serve a copy on the Office of the Director of Public Prosecutions and on the accused person and his counsel.

Rules and key headnotes

Defilement — Child-to-Child Sex — Statutory Interpretation of Section 129A Penal Code Act
Section 129A of the Penal Code Act does not create a distinct criminal offence known as child-to-child sex. The section only provides the procedure for dealing with child offenders who are charged with the offence of defilement under section 129 of the Penal Code Act.
Marginal Notes — Misleading Effect — Interpretation of Statute
The use of the phrase 'child-to-child sex' in the marginal notes to section 129A of the Penal Code Act is misleading to the extent that it appears to create a distinct offence. The correct reading of the marginal note is that it describes a procedure to be followed when the offenders are both children, not a separate offence.
Constitutional Principle — Nulla Poena Sine Lege — Definition of Offences
No person shall be charged with or convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law. This principle, known as nulla poena sine lege, is enshrined in Article 28(7) and (12) of the Constitution of the Republic of Uganda and requires that an offence be defined and a penalty prescribed before a person can be convicted.
Jurisdiction — High Court — Aggravated Defilement
The offence of aggravated defilement under section 129(3) of the Penal Code Act falls within the exclusive jurisdiction of the High Court and cannot be tried by the Chief Magistrate's Court or any other Magistrate's Court.
Defilement — Section 129A Procedure — Dealing with Child Offenders
Where an offence under section 129 of the Penal Code Act is committed by a male child and a female child upon each other when each is not below the age of twelve years, section 129A(2) directs that each offender shall be dealt with as required by Part X of the Children Act. This is a procedural direction on how to treat juvenile offenders, not a definition of a separate offence.

Legislation cited (15)

Cases cited (3)

  • Salvatori Abuki v Attorney General (Constitutional Petition No. 2 of 1997)
  • Uganda v OJ alias T (Criminal Session Case No. 090 of 2017)
  • Uganda v Kusemererwa (HCT-01-CR-SC-2014/15)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v Omirambe (Criminal Case 15 of 2018) [2021] UGHCCRD 89 (14 April 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.