THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
CORAM: ODOKI, CJ; TSEKOOKO, MULENGA, KANYEIHAMBA, AND KATUREEBE, JJ.SC.
CRIMINAL APPEAL No.6 OF 2004
KATENDE AHAMAD …………………... APPELLANT
UGANDA ……………………………… RESPONDENT
JUDGMENT OF THE COURT
[An Appeal from the decision of the Court of Appeal at Kampala (Okello, Twinomujuni and Kitumba, JJ.A) dated 16th July, 2004 in Criminal Appeal No.2 of 2002.]
The appellant, Katende Ahamad, was tried and convicted by the High Court (C.A.Okello, J.) on an indictment of defilement contrary to S.123 (1) of the Penal Code. He was sentenced to a period of ten years. The Court of Appeal dismissed his appeal. He has now appealed to this Court.
According to the indictment, between April and June, 1999, in Bulongo village, in Mukono District, the appellant had unlawful sexual intercourse with Nalweyiso Hajala, a girl under the age of 18 years.
The appellant fathered Nalweyiso Hajala (PW2) with Hadija Nakakande (PW3) before the two separated. PW2 and other children lived in the same house with their grandmother together with the appellant’s sister, Betty Nakibule, (PW4). The grandmother died during the month of April, 1999. The appellant, who was working and staying away in Kampala, returned to the village and lived in that same (grandmother’s) house with PW4 and the children including PW2 and her sister Zaina Nakitende. The appellant slept on his deceased mother’s bed. It appears that during the month of April, 1999, while PW4 was away, the appellant forcefully ravished PW2 who was then 9 years. Her evidence reveals what took place. The following is part of the record showing how she narrated her testimony to the trial Judge.
“My father grabbed me when I was at Bulongo. When he grabbed me and told me not to speak else he would cut me. 1st time he grabbed me, we were in the house when my Aunt had gone for last funeral rites……………… at night he went to sleep in his bed. He slept on grandmother’s bed, he called me. He said that I should go and sleep with him. I told him children were crying. He ordered me to go to him. He came and put off the light then pulled my hand. He made me to lie down. He removed his trousers. He asked me if I had underpants. I said yes. He told me to remove it. I refused. He removed my underpants. He then lay on me. He removed his penis and put it in my vagina. I was about to cry he told me to stop. That he would cut me with a panga. There was a panga in the room. He then removed himself from me. He put on his trousers. He asked me whether I had put on my underpants. I saw something looking like pus on the pants, my body, mattress and on his penis. The pus white thing was in my vagina. I did not see blood.
Next day our aunt came from the village. I did not tell anybody because my father was in the sitting room with my aunt and I feared him. He told us to go and pick coffee. I did go. Katende (her brother) also came to pick coffee…………….. Father told Katende to go and pick coffee from upper part. He called me to go and pick coffee with him. I went and started picking coffee. He went far and called me to go and pick coffee with him. I refused to go. He came to me. He removed his trouser. He pulled me. He removed my pants. Then he lay on me. He put his pens into my vagina…………………. It was morning hours. We returned home.
………………. He went on repeating the same until my mother came. I told her and she abused him.
Eventually the defilement was reported to LC officials and to Police. Subsequently, Dr. Charles Kimera (PW1) examined PW2 on 26/6/1999. He established that the little girl was then aged 9 years and that her haymen had been raptured. The appellant was arrested on 5/7/1999 and was charged with the offence of defilement and was prosecuted.
In his unsworn statement during his trial, he denied the offence. He claimed he was a religious man and because of strong religious beliefs, he could not defile his daughter. He claimed in effect that he was being framed by his sister (presumably PW3) because the two had had disputes about sharing of their father’s land. The assessors and the trial judge believed PW2 and disbelieved the appellant who was found guilty, convicted and sentenced to 10 years imprisonment. His appeal to the Court of Appeal was dismissed. His appeal to this Court is based on two grounds.
These grounds are framed as under –
The learned Justices of Appeal erred in law when they failed to direct themselves regarding the propriety of the trial court’s finding after its conduct of a voire dire in respect of PW2 thereby misdirecting themselves concerning the requirement for corroboration.
2. The learned Justices of Appeal erred when they misconstrued an otherwise vague sentence thereby upholding an unjust sentence.
The two grounds are vague. His submission on ground 2 indicates the complaint to be that the sentence is unlawful.
When arguing the first ground, Mr. Mubiru, counsel for the appellant, conceded that the notes of the record of the conduct of