KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAW
PROGRAMM : LLB
COURSE UNIT : CRIMINAL LIABILITY
YEAR : ONE
SEMESTER : TWO
SESSION :DAY
LECTURER : MR. NTALE ROGERS
GROUP 4
No NAME REG. No SIGNATURE

1. NAMAYE KEREN
2. KEMBABAZI PATRICIA

3. MABIKE JULIUS

4. AKANKUNDA NAOME

5. KABATENDE GEORGE WILLIAM

6. RUPINYMUNGUJAKISA KEITH

7. NYIKAMURE ELISAMAWANI
8. ABIGABA ALEX
9. BOSSA HYDERY
10. NANTAMBA OMERIA
11. MUHOOZI ERIYA
12. MUREIRE CATHBERT
13. KYAZZE IMAN ZAWAHILI
14. SSERUYANGE MIRACLE
15. AINEMBABAZI SHIFRAH
OFFENSES AGAINST MORALITY.

RAPE.

According to section 110 of the PCA, any person who has unlawful carnal knowledge of a
woman or girl without her consent or with her consent if the consent is obtained by force, or by
means of false representation as to the nature of the act of in case of a married woman by
impersonating her husband commits a felony termed rape and is liable to suffer death if
convicted1. In the case of, Uganda v Byakatonda(20102), the prosecution proved beyond
reasonable doubt that the woman had experienced unlawful and forceful carnal knowledge and
that it’s the accused that participated in this act against her. In R v Flattery (1877)2 QB8 4103,
the defendant John Flattery posed as a medical doctor and under the pretense of performing
surgery, he had sex with the complainant, a young woman aged 19years hence being charged
with rape. And in the case of R v Williams (1923) 1 KB3404, the appellant was a music teacher
who convinced a 16 year old student, specifically the victim to let him do something to improve
her singing voice. However he was in fact having sex with her and consequently, the appellant
was charged with
Ingredients

 Lack of consent
 There must be unlawful carnal knowledge of a woman or girl
 Use of force
 Fear off bodily harm
 Intimidation
 False representations

Defenses

 Insanity
Mistake of fact (DPP v Morgan (1915)2ALL ER 384, R v Elomari (2012) QCA27)
1
PENAL CODE ACT CAP 128
2
Uganda v Byakatonda (2010
3
R v Flattery (1877)2 QB8 410
4
R v Williams (1923) 1 KB340
  Intoxication (Snow v R(1962), Holman v R(1970) WAR2)

INCEST.

Incest refers to having sexual relations between close family members who are legally or socially
prohibited from marrying due to their close biological or familiar relationship. According to the
PCA Cap 128, section 138(1) provides that any person who has sexual intercourse with another
with whom to his or her knowledge any relationship as listed under the Penal Code Section
138(1) commits the offence of incest and is liable on conviction to imprisonment for a term of
7years or if that person is under the age of 18 years of age, to imprisonment for life5.

In the case Byaruhanga v Uganda (2002) UGSC 366,the appellant was a male person who had
unlawful carnal knowledge with the girl who is his granddaughter.

Ingredients

 Sexual intercourse with someone with whom marriage is prohibited

 Knowingly having sexual intercourse
 Knowledge of the relationship

Defenses

 Lack of knowledge of the relationship

 Mistaken identity (in case of adoption, separation at birth…)
 Lack of intent (accidental contact like medical emergency)
 Mental incapacity insanity. A person suffering from a severe mental disorder that
prevented them from understanding their actions can constitute to using this defense.

5
PENAL CODE ACT CAP 128
6
Byaruhanga v Uganda (2002) UGSC 36
LACK OF CONSENT

Lack of consent is where someone is forced into sexual activity without agreement . consent
must be freely given which means person can chose a yes or no .

The importance of lack of lack of consent was emphasized in a case of Nakholi V Repubic
1967 1 EA 337 where the trial judge took the age of the victim to be thirteen years and in his
address to assessors was the question of victimz consent was no important since she was
incapable of giving consent legally .

In Criminal case No. 27 of 2011 Uganda V Osipira etma ,the accused was charged with rape
c/s 123 of the Penal code cape cap . It was alleged that the accreused person on 10 th February
2011 at Serere township had unlawful carnal knowledge of the victim without her consent . The
key question was whether there was no consent for sexual encourter . Hon. Lady justice Woloyo
observed that although the state and defence cousel admitted medical evidence by consent , it
was not helpful as the clinical officer who examined the found no evidence of penetration. The
court had to look for other evidence to prove the offence by oral testimony of the witnesses .

Court held that where the victim raised an alarm which was answered by the witness wh0 saw
the accused running out of the victims house without a shirt and fact that the victim weak after
sexual intercourse with the accused person was strong evidence to prove lack of consent .

BIGAMY

Refers to the act of marrying someone while one is still legally married to another as provided
for in the PCA Cap 128, section 142 7. It is also a felony and amounts to imprisonment for 5
years. In the case of R V Kagoro(1964) EA 355,R v Okello 1972 NCB (1946), R V
Tolson(1889) YHM 23 QBD 1638

Ingredients

 Knowledge of previous marriage

7
PENAL CODE ACT CAP 128
R V Kagoro (1964) EA 355, R v Okello 1972 NCB (1946), R V Tolson (1889) YHM 23 QBD
8

163
  Still married, (no divorce)
 Intention to commit bigamy
 Previous marriage

Legal implications

 Criminal offense
 Voidable marriage
 Property and inheritance

Defilement

According to section 116 of the PCA Cap 128, any person who performs a sexual act with
another person who is below the age of 18 years commits a felony termed as defilement and
is liable on conviction to life imprisonment. Attempted defilement too is also provided for in
subsection (2) and any person who commits it is liable on conviction to imprisonment for a
term not exceeding 18 years9.

Any person who performs a sexual act with another person below the age of 18 years in any
of the circumstances specified in subsection (4) commits a felony called aggravated
defilement and is liable on conviction by the court to imprisonment for life. Note that any
person who attempts to perform a sexual act with a person below the age of 18 years in any
of the circumstances specified in subsection (4).

An additional payment, which shall be determined by the court in addition to any sentence
shall be made by a person convicted of defilement or aggravated defilement as provided for
in section 118.

Defilement of idiots or imbeciles.

Any person who, knowing a woman or girl to be an idiot or an imbecile has or attempts to
have unlawful carnal knowledge of her under circumstances not amounting to rape, but
which prove that the offender knew at the time of the commission of the offense that the
9
PENAL CODE ACT CAP 128
 woman or girl was an idiot or imbecile commits a felony and liable on conviction to
imprisonment for a term of 14 years.

Indecent assaults.

Any person who unlawfully and indecently assaults any woman or girl commits a felony and
is liable on conviction to imprisonment for a term of 14 years. Assault may amount to
insulting the modesty of any woman or girl, uttering any word, making sound or gesture or
exhibiting any object, intending that such word or sound shall be heard or that such gesture
or object shall be seen by such woman or girl. This is a misdemeanor and is liable on
conviction to imprisonment for the term of one year as provided for in section 11510

The ingredients are that;

i) Unlawful and indecent assault of a woman

ii) ii) Without her consent to the assault
iii) iii) Participation of the accused person
By indecent assault, it is elaborated under the PCA by indicating situations where it
may occurthat is; where a person, ‘with the intention to insult the modesty of any
woman or girl utters any word, makes any sound or gesture or exhibits any object’,
with the intention that the girl orwoman hears the word or sound or sees such gesture
or object or ‘intrudes upon the privacy ofsuch woman or girl’. Specifically, indecent
assault of a boy under 18 years is provided for under section 147 of thePCA to the
effect that any ‘person who unlawfully indecently assaults a boy under the age
ofeighteen years commits a felony and is liable to imprisonment for fourteen years,
with or withoutcorporal punishment.

In respect to the charge of indecentassault there was no medical evidence to support the
allegation.What amounts to indecent assault was discussed in Hamisi v Republic [1972] 1
EA 36711 wherethe accused was charged with attempted rape but, on the evidence, the
resident magistrate foundhim not guilty of the offence but guilty of indecent assault. On

10
PENAL CODE ACT CAP 128
11
Hamisi v Republic [1972] 1 EA 367
inspection of the record the Courtfound it necessary to admit the case for argument as to
whether the facts as found by the trialmagistrate amounted to indecent assault on the
complainant by the accused.On 26 June 1970, the complainant, while going home from the
Government guest house inTabora, found the accused.

The accused threw his bicycle to the ground and held thecomplainant and said
to her that he was going to have sexual intercourse with her by force. Theaccused then
dragged her to a place where there was tall grass and threw her to the ground, drewa knife,
and threatened to kill her if she did not comply with his request. According to herevidence
the accused holding the knife at her, forced her to remove her underclothes which shedid.
The accused then started to remove his trousers but as he was doing so a police car
stoppednearby and the complainant called for help. The driver of the car went to the scene
and took bothparties to the police station. The accused was eventually charged with
attempted rape.The issue was whether the facts were sufficient to support the alternative
verdict of indecentassault. The Court held;

That an assault on a lady though not indecent in itself becomes indecent if it

isaccompanied by indecent utterances suggestive of sexual intercourse.

Since the accused in this case had earlier asked the complainant to have
sexualintercourse with him and he, in trying to accomplish his passions, threw her to
theground, his throwing her to the ground amounted to indecent assault.

That forcing by the accused of the complainant to remove her underpants amounted
toremoving the underpants of the complainant by the accused and as such the accused
wasguilty of indecent assault.

Elopement
Its first of all a misdemeanor.
The word elope means to secretly run away with someone to get married
However, law dictionary second edition defines elopement as the act of wife who voluntarily
deserts her husband to cohabit with another man
 For elopement to be constituted, the wife must not only leave the husband but must go
beyond his actual control.
For if she abandons the husband and goes and lives in adultery in a house belonging to him it
is said not to be an elopement.
Penal code Act Cap 128’s12 definition of elopement is seen under section 114.
Ingredients that constitute to elopement
-One should entice the other to leave with him or her
-One should have knowledge that the party they intend to elope with is married.

Case talking of elopement

Nyeko& another V Uganda criminal revision & of 199213
In Uganda v Olungu [1972] 1 EA 13614 the accused was convicted of elopement although
the prosecution evidence showed that the complainant’s wife had left him years before. On
revisionist was held that the word “elopement” implies “running away with-usually from
some kind ofhome”. Where the wife had run away from her husband at least four years prior
to the allegedoffence and it appears obvious that once she had permanently left the
matrimonial abode, theaccused could not have committed the offence of elopement.

Uganda v Akua and another [1973] 1 EA 246 15 where compensation should only be
awardedwhere the complainant shows that he was aggrieved.

ABDUCTION

This offence is provided for under Section 113 of the PCA which is committed when any
personwho;

i) with the intent to marry or be married or have sexual intercourse with another person;
ii) takes that person away or detains him or her against his or her will or

12
Penal code Act Cap 128
13
Nyeko& another V Uganda criminal revision & of 1992
14
Uganda v Olungu [1972] 1 EA 136
15
Uganda v Akua and another [1973] 1 EA 246
 iii) iii) unlawfully takes another person below 18 years of age out of the parents’ custody
or of anyperson who has lawful care over that person commits an offence punishable
by imprisonment for7 year

Indecent practices are acts that are considered offensive to standards of decency especially in
sexual matters. In Uganda, the penal code Act Cap 128 provides for indecent practice in section
137.

Any person who whether in public or in private commits any act of gross indecency with another
person or procures another person to commit any act of gross indecency with him or her or
attempts to procure the commission of any such act by any person with himself or herself or with
another person in public or private commits an offence and is liable on conviction, to
imprisonment for a terms of seven years.

Ingredients

Insults
Exposure of private body parts
Unwanted sexual behavior
Weird gesture/ comment
Victims’ perception

Examples of indecent practices

Indecent exposure
Sexual harassment
Indecent assault
Public musturbation
Loud phone calls or text massages
The pants down rule
Adam Mulira Vs R (1953) 20 EACA16. Question is pulling someone’s pants down a sexual
assault
Carnal knowledge means sexual intercourse and to prove rape, it is necessary to prove
penetration however slight by the male organ into the virgina. There need be no emission of
semen.
The absence of consent is the crux of matter. The test is “was she act against her will?”

Bibliography
1. Penal code Act Cap 128
2. Uganda v Byakatonda (2010
3. R v Flattery (1877)2 QB8 410
4. R v Williams (1923) 1 KB340
5. Uganda v Akua and another [1973] 1 EA 246
6. Nyeko& another V Uganda criminal revision & of 1992
7. Uganda v Olungu [1972] 1 EA 136

16
Adam Mulira Vs R (1953) 20 EACA