The Constitutional Court has extended legal protection against indecent assault and acts insulting modesty to men, ruling that provisions of the Penal Code Act that previously protected only women and girls are discriminatory and inconsistent with the Constitution.
The court also declared unconstitutional provisions of the Magistrates Courts Act that allow magistrates to participate in preliminary investigations, formulate charges and subsequently preside over the trial of the same case, saying the practice undermines judicial impartiality and the right to a fair hearing.
In a unanimous judgment delivered in Kampala, a panel of five justices led by Justice Cheborion Barishaki ordered that the words “any woman or girl” in Section 115(1) and (3) of the Penal Code Act be replaced with “any person”, thereby extending the protection regardless of gender.
The ruling followed consolidated petitions filed by city lawyer Steven Kalali, Pader District-based Chief Magistrate Martins Kirya and lawyer Michael Aboneka against the Attorney General. They challenged Sections 115(1) and (3) of the Penal Code Act and Sections 42(1)(c), (2), (3), (4), (5) and (6) of the Magistrates Courts Act.
The petitions were filed shortly after Uganda Law Society President Isaac Ssemakadde was summoned over charges of insulting the modesty of a woman. The charges arose from remarks directed at former Director of Public Prosecutions Jane Frances Abodo. Buganda Road Chief Magistrates Court subsequently issued an arrest warrant against him, after which he went into exile.
Ssemakadde had earlier been sentenced to two years in prison for contempt of court by then Civil Division Judge Musa Ssekaana, who is now a Constitutional Court justice.
The petitioners, however, challenged the laws on broader constitutional grounds, arguing that restricting protection against indecent assault and acts insulting modesty to women and girls discriminated against men, who could also suffer similar violations. They argued that the provisions contravened Article 21 of the Constitution, which guarantees equality before the law and equal protection.
They also challenged the wording of Section 115(3), arguing that terms such as words, sounds, gestures and objects capable of insulting a woman’s modesty were insufficiently defined, leaving room for arbitrary interpretation and prosecution.
The Attorney General defended the provisions, arguing that they constituted affirmative action intended to address the disproportionate vulnerability of women to gender-based violence, as recognised under Articles 21 and 33 of the Constitution.
However, the court rejected the argument, observing that although women and girls require protection, the law cannot deny men equivalent protection against similar forms of harm.
Justice Barishaki held that affirmative action measures intended to address historical inequalities should not create another form of discrimination against a different group.
The court ordered that the changes take immediate effect pending Parliament’s amendment of the law. It directed the Attorney General to introduce a Bill within 12 months to amend Section 115 of the Penal Code Act and provide a clearer definition of the conduct prohibited under subsection (3).
On the second petition, the court found that provisions of the Magistrates Courts Act allowing a magistrate to receive a private criminal complaint, consult a local chief, establish whether a prima facie case exists, prepare a charge sheet and subsequently hear the case were unconstitutional.
Kalali had argued that the arrangement placed a judicial officer in three incompatible positions: investigator, prosecutor and adjudicator. The petitioners maintained that a magistrate who participates in preliminary inquiries and formulates charges against an accused person cannot subsequently be considered impartial when determining the same case.
The Attorney General conceded during the hearing that the provisions were inconsistent with the Constitution, particularly because the Constitution assigns the Director of Public Prosecutions special powers and responsibilities in criminal prosecutions.
The court nevertheless examined the issue independently and agreed with the petitioners, emphasising that the right to a fair hearing before an independent and impartial court is guaranteed under Article 28(1) and is non-derogable under Article 44(c) of the Constitution.
Justice Barishaki observed that a magistrate who makes preliminary findings, determines that a case has a prima facie basis and prepares the charge sheet before hearing the accused risks carrying those prior conclusions into the trial.
The court said the arrangement compromises both the reality and appearance of judicial impartiality.
However, it stopped short of abolishing private prosecutions, instead modifying the law to preserve the right of private citizens to institute criminal proceedings.
Under the revised arrangement, a magistrate receiving a private complaint may assess whether the court has jurisdiction and whether a prima facie case exists. However, the formal charge must subsequently be prepared by the complainant or their advocate, or referred to the Director of Public Prosecutions for consideration.
A magistrate who participates in the preliminary consultation and screening process is barred from presiding over the subsequent trial of the same matter.
The Attorney General was also directed to introduce a Bill within 12 months to amend Section 42 of the Magistrates Courts Act and establish a constitutionally compliant procedure for private prosecutions.
The court made no order as to costs, observing that the petitions had been brought in the public interest.
A source who spoke to Uganda Radio Network on condition of anonymity said the ruling could affect the arrest warrant previously issued against Ssemakadde over the charge of insulting the modesty of a woman.
The source argued that the charge would no longer stand under the amended provision and that the warrant should consequently be vacated.
However, the source added that Ssemakadde would remain subject to the separate two-year sentence imposed for contempt of court.
The source further said the ruling could affect other people facing similar charges, although the implications for pending cases would depend on the circumstances of each case and any subsequent court directions.
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