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The Constitution of the Republic of Uganda states that all power belongs to the people.
For a long time, this Constitutional provision was largely interpreted and applied in the context of political power until recently when Ugandans decided to claim and apply it to their social interactions most especially while using social media.
The exercise of such power by the public has come to be known as the people’s court or the court of public opinion.
It simply means that everyone can pass a judgment in any given scenario that they hear about albeit not being acquainted with the full facts of such a scenario.
This concept was first tested a few years ago when Robert Kyagulanyi alias Bobi Wine withdrew his presidential election petition from the Supreme Court and presented it before what he called the people’s court, meaning the court of public opinion.
Since then the concept has gained momentum and it is now strongly associated with every crime or allegations reported in the media.
This week has not been different and for the tweeps or X users, one of the trending stories is that of Mr. Senfuma John Kato who was arrested on the allegations of attempted defilement.
According to the Uganda Police and the social media posts, it is alleged that Mr. Senfuma, a school teacher planned to have sexual intercourse with his under-aged student at the girl’s home.
It is further alleged that the girl’s parents lured Senfuma to visit their home by pretending to be the girl chatting with him on WhatsApp.
The ill-fated Senfuma fell for the trap and he was arrested by the police upon arrival.
The police apparently recovered two packs of unused kiss condoms, UGX. 1000/= and a National Identity Card identifying him as Senfuma John Kato.
Other social media posts show Senfuma as a responsible citizen posing before cakes and giving a speech to the audience with a school set up.
This portrays him as a responsible person than we have come to know him for.
As is the practice, the court of public opinion has already charged and convicted Senfuma with the offence of attempted defilement.
Some public judges have termed it as attempted aggravated defilement. So let us review this judgment and see if indeed Senfuma was rightly judged and convicted by this court of public opinion.
Presumption of innocence
Before I even look at the offence of attempted defilement, it is noteworthy that the public judges should have considered the fundamental principle of presumption of innocence.
Unlike other civil law jurisdictions like our neighbours Rwanda where a suspect is presumed guilty until he or she proves otherwise, Uganda is a common law state and a suspect is presumed innocent until he or she is proven guilty by a competent court.
Two things should not be ignored here, one is that a person is innocent until proven guilty and secondly, it is only a competent court that can declare that an accused person is innocent or guilty or until that person has pleaded guilty.
These requirements are some of the tenets of the right to a fair hearing which is a non-derogable right in Uganda.
Now, unless I have missed out something, I am convinced that the court of public opinion has not had an opportunity to hear Senfuma’s story before charging and convicting him.
Secondly, a competent court envisaged under the right to a fair hearing is that which is established under the Constitution or any other law with the authority to handle such matters.
I am not sure if the court of public opinion issues binding opinions or if the judges manning the court were legally appointed.
If such a legal instrument indeed exists, then it is subservient to the constitutional provisions on fair hearing.
The above observations make the court of public opinion illegitimate and the opinions of its judges unenforceable.
Whereas that is the legal position, we should not forget the negative impact such opinions cause to the victims by leaving most people depressed and Studies show that some victims even attempt to or commit suicide.
These acts can be looked at as cyber harassment and computer misuse to make such opinions without proof and regard for the suspect/victim but solely based on hearsay information and other people’s opinions.
The case of attempted defilement
The Penal Code Act creates a criminal offence of defilement of a girl under the age of eighteen years. It states that any person who unlawfully has sexual intercourse with a girl under the age of eighteen years commits an offence and is liable to suffer death.
The Penal Code Act does not specifically define attempted defilement. However, it provides for the offence of defilement and it also provides for a separate general provision on attempt to commit a crime.
The two provisions may therefore be read together to form a charge of attempted defilement. However while doing this, it must also be noted that no person can be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.
The issue then becomes whether the offence of attempted defilement exists.
To easily understand this scenario, I will rely on the Kenyan High Court case of Peter Ndoli Adisa V. Republic, Criminal Appeal No. 32 of 2016 that deals with the offence of attempted defilement because unlike Uganda which has a draft Sexual Offences Bill, 2019, Kenya enacted the Sexual Offences Act No. 3 of 2006 that includes this offence.
In the Peter Ndoli case, the Appellant intentionally attempted to cause his penis to penetrate the vagina of a 16 year old girl whom he had offered a place to sleep since it was late in the night and she had not yet reached her destination.
The girl ran out of the house screaming and people came to her rescue.
Before being convicted by the Magistrate, the Appellant made the following unsworn statement;
“I live in Katitu. I worked as a driver. I am sorry for what I did. I will not repeat. I am guilty. That is all”.
On appeal, the High Court in Kenya stated that the offence of attempted defilement contrary to Section 9(1) (2) of the sexual offences Act provides that a person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
It further stated that the prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must form the age of the complainant, the positive identification of the accused, and then prove steps taken by the accused to execute the defilement which did not succeed.
Attempted defilement is a failed defilement, failed because there was no penetration.
With Senfuma’s scenario, let us assume that the girl was under 18 years and Senfuma was positively identified which led to his arrest.
What is more critical for this offence is the proof of the steps taken by Senfuma to execute the botched defilement which I discuss below.
Steps taken by Senfuma to execute the botched defilement
It is again alleged that Senfuma was chatting with the girl on Whatsapp demanding to visit her home when her parents are away. Thereafter, the girl’s parents stated that they anonymously chatted with Senfuma pretending to be the girl hence luring him to come to their home where he was arrested.
In the Peter Ndoli case, the girl testified that the accused was a driver who offered her a place to sleep at his home. While they slept at almost 2.am her door opened and the accused lay next to her and started touching her legs to which she went outside and he followed her and told her to go back and sleep and she refused.
To prove an attempt to commit an offence, the mens rea or intention and the actus reus or overt act which is geared towards the execution of the intention must be shown.
The intention must be more than mere preparation to commit the act as there is a difference between mere preparation to commit an offence and attempting to commit an offence.
The court guided that the touching of the complainant’s legs cannot by of itself alone be said to constitute “an act which would cause penetration to a child for it to amount to attempted defilement. Not every act will constitute attempted defilement but it must be proved that such act would cause penetration which is defined as a partial or complete insertion of the genital organ of a person into the genital organs of another person. ”
The accused in the Peter Ndoli case was acquitted on appeal.
In the end, the court of public opinion has a long way to go to attain efficacy and de facto recognition and later on de jure recognition in as much as it violates the suspect’s or people’s rights by making opinions based on partial and scanty information made available to the public and in utter disregard of the law.
However, their opinions do not go unrecognized and I call upon the parliament to expedite the passing of the Sexual Offences Bill that may offer better protection to the victims of sexual offences.
In respect of Senfuma’s case, I will leave it up to the real court to decide whether the acts of Senfuma, as we know them, constitute mere preparation to commit an offence or an attempt to commit an offence.
This Article provides general information only. It is not intended to provide advice concerning any specific set of facts, nor is it intended to be relied on as legal advice.
Lawyer practicing with TARA Advocates. Areas of practice are: Commercial and Corporate law, Intellectual property law, Labour and employment law, Tax law, Criminal law and Legal advisory services.