THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MPIGI
CRIMINAL SESSION CASE NO.159 OF 2017
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
VERSUS
KIZZA MANIRA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED
BEFORE: HON. JUSTICE EMMANUEL BAGUMA
JUDGMENT
Kiiza Manira the accused person was indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) (a) (b) of the Penal Code Act.
It was alleged that Kizza Manira on the 5th March 2017 at Ndese village, Bulo Sub-County in Butambala district performed a sexual act with Nakiito Niya a girl aged 13 years and the said Kizza Manira was a person infected with HIV.
The prosecution has the burden of proving the case against the accused beyond reasonable doubt. The burden does not shift and the accused can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence, (See Ssekitoleko v. Uganda [1967] EA 531). Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).
For the accused to be convicted of Aggravated Defilement in this case, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;
- The victim was below 14 years of age
- A sexual act was performed on the victim
- The accused is infected with HIV
- That it is the accused person who performed the sexual act on the victim.
In order to discharge the burden of proving the case beyond reasonable doubt, the prosecution called three witnesses, namely Nakiito Niya (PW1); Ssejemba William (PW2) and Kabuye Sulaiman (PW3).The accused person gave sworn evidence and called no witnesses.
First, the prosecution is required to prove beyond reasonable doubt that the victim was below 14 years of age. In the instant case, the victim and her father testified that the victim was born on 8thAugust 2003, meaning she was 13 when the incident took place. The victim’s birth certificate was brought in court and marked PEX3 which proved that the victim was born on that date. The defence did not contest this ingredient during cross-examination of the witnesses. I have considered the evidence and find that prosecution has proved beyond reasonable doubt that the victim, Nakkito Niya was below 14 years by the time the incident took place in 2017.
The second ingredient requires proof that a sexual act was performed on the victim. One of the definitions of a sexual act under Section 197 of the Penal Code Act is penetration of the vagina, however slight, of any person by a sexual organ. This ingredient is ordinarily proved by the direct evidence of the victim, but may also be proved by circumstantial and medical evidence. (See Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 (Unreported).
In the instant case, the prosecution relied on the testimony of P.W.1, the victim who testified that the accused met her on the way and had sex with her in the middle of the foot path.
In the admitted evidence of the medical form, Prosecution Exhibit 1, (PEX1) it was indicated that the victim had no hymen
I therefore find that prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim.
Prosecution has to also prove that the accused person was infected with HIV at the time the sexual incident took place. The medical report PEX2 showed that the accused was HIV positive and the accused in his testimony in court admitted to being HIV positive.
I therefore find that Prosecution has also proved this ingredient beyond reasonable doubt.
Finally, prosecution has to prove that it was the accused person responsible for the sexual act.
This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime. The law on proof of sexual intercourse was stated by the Supreme Court in Basita Hussein Vs Uganda S.C. CRIM.APPEAL No. 35 of 1995 as follows; -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Sexual intercourse is proved by the victim’s own evidence and corroborated by medical or other evidence. Though desirable it is not a hard and first rule that the victim’s evidence and medical evidence must always be addressed in every case of defilement of proof of 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”
Prosecution relied on the direct evidence of the victim, Nakitto Niya who testified that the accused person found her along the way from the well and defiled her n the middle of the path. PW2 testified that the victim told him that she was defiled by her neighbor.
The victim in this case knew the accused as her neighbor thus cannot be mistaken as to his identity.
I am alive to the fact that the accused person has no burden to prove anything, and in this case, the accused person denied the allegations. However, he stated that the victim was his neighbor and he knew her.
In the premises, I find that prosecution has put up a strong case by being consistent and I am therefore inclined to hold that prosecution has also proved the fourth ingredient beyond reasonable doubt.
In conclusion and in agreement with the assessors I find that prosecution has proved all the essential ingredients of the offence of aggravated defilement against the accused person beyond reasonable doubt.
I hereby convict the accused person of Aggravated Defilement C/S 129 (3) and (4) (a) (b) of the Penal Code Act.
………………………………………….
Emmanuel Baguma
Judge
2/07/19
Prosecutor Aggravating factors:
The accused has no previous criminal record. However I pray that accused was HIV=VE and exposed the victim to the risk.
I pray for 10 years imprisonment.
Allocutus-mitigation factors.
My Lord, the convict is a 1st time offender he was 18 years old. The accused is a younger offender and the victim as 13 years old. By then they had a difference of five years. The convict has been on remand since 22/3/2017 meaning he has been on remand for Two years, three months and ten days . My Lord, I pray that the period spent on remand be considered. I pray for seven years imprisonment.
Court:
Accused given chance to say anything in mitigation since the lead counsel is absent.
Emmanuel Baguma
Judge
2/4/2019
Accused/mitigation
My Lord I am sick with HIV and I have no parents. I pray for mercy.
Reasons and sentence:
I have considered both aggravating and mitigating factors for both the prosecution and defence.
I have also considered the age of both the convict and victim at the time his offence was committed when the convict was 18 years and victim 13 years but the convict knew that he was HIV+VE.
Accordingly accused is sentenced to 17 years, three months and ten days.
Emmanuel Baguma
Judge
However since accused has been on remand for two years, three months and ten days , I will subtract the period spent on remand of two years, three months and ten days . I will therefore, sentence the convict to serve a period of 15 years imprisonment.
Emmanuel Baguma
Judge
2/7/2019.
Court:
Right of appeal explained to both parties.
Emmanuel Baguma
Judge
2/7/2019.
