In a unanimous judgment delivered in Kampala, the Constitutional Court of Uganda has extended legal protection against indecent assault and acts insulting modesty to men. The court ruled that provisions of the Penal Code Act that previously protected only women and girls are discriminatory and inconsistent with the Constitution. This decision was made following consolidated petitions filed by city lawyer Steven Kalali, Pader District-based chief magistrate Martins Kirya, and lawyer Michael Aboneka against the Attorney General.
The petitioners 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. They argued that restricting protection against indecent assault and acts insulting modesty to women and girls discriminated against men, who could also suffer similar violations. The court agreed, ordering that the words “any woman or girl” in Section 115(1) and (3) of the Penal Code Act be replaced with “any person”, extending the protection regardless of gender.
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. The court found that this practice undermines judicial impartiality and the right to a fair hearing. A panel of five justices, led by Justice Cheborion Barishaki, held that a magistrate who makes preliminary findings and prepares the charge sheet before hearing the accused risks carrying prior conclusions into the trial.
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. The court 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.
The court modified 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 DPP 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 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). 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.
A source close to the matter said the ruling could affect the warrant of arrest previously issued against Uganda Law Society president Isaac 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. The source added that Ssemakadde would still be subject to the separate two-year sentence imposed for contempt of court.
Key points
- The Constitutional Court of Uganda has extended protection against indecent assault to men.
- The court has barred magistrates from trying cases they investigate.
- The ruling could affect pending cases, including the warrant of arrest issued against Uganda Law Society president Isaac Ssemakadde.
