Bahati says law is silent about defilement of boys; 2007 law says otherwise

There seems to be confusion among Uganda parliamentarians about what their law says regarding defilement of children.

Speaking about the perceived need for the Anti-Homosexuality Bill, David Bahati is quoted in the Independent as saying the following:

Trying to justify the necessity of passing the bill into law he added, “In the Defilement Act 2009, the law says that if someone (man) defiles a minor (girl child), the maximum punishment is death, but if a man defiles a boy, the law is silent about it.”

I can find no mention of a “Defilement Act 2009” on the website of the Ugandan Parliament or in any news reports. However, note this 2007 report of a bill passed in Uganda which covers boys and girls.

KAMPALA, 19 April 2007 (PlusNews) – According to a new law passed by Uganda’s parliament on Wednesday, an HIV-positive person who wilfully infects a minor through sexual intercourse will face the death penalty.

According to the new Penal Code Amendment Bill, an individual who is aware of their HIV-positive status and has sex with a child under the age of 14, with or without their consent, is guilty of “aggravated defilement” and, on conviction in the High Court, “liable to suffer death”. The crime of defilement is defined as sex with a person under the age of 14.

Parliament unanimously passed the bill, first tabled in August 2006, but parliamentary spokeswoman Helen Kawesa said it needed presidential assent to become law, which usually takes about 30 days.

The proposed legislation seeks to amend the existing penal code, which has been criticised for being too lenient with HIV-positive people who rape children. Capital punishment has been the penalty for anyone found guilty of rape or defilement since 1996, but has never been implemented.

This article seems to be referring to the passage of the same law referred to here in these April 18 minutes of the Ugandan Parliament.

THE MINISTER OF STATE, JUSTICE (Mr Fred Ruhindi): Madam Speaker, I beg to move that the Bill entitled the Penal Code (Amendment) Bill, 2007 be read for the third time and do pass.

(Question put and agreed to.)

A Bill for an Act entitled “The Penal Code (Amendment) Act, 2007”

There is a lengthy discussion of the bill which references a Parliament committee report making clear that the bill refers to both boys and girls.

2.     Defilement: 

a)   The proposed amendment on section 129 defines a sexual act to involve the offence on either a male and a female child.  The offence of defilement is a felony and an offence punishable by life imprisonment and therefore triable and bailable by Chief Magistrate. 

The amendment intends to punish persons for sexual acts committed against all children – both male and female.

Indeed, as far as I can tell from the Parliament’s minutes, the amendments remained intact and the law covers both male and female children.

To those in the know in Uganda: Which is it? We have been hearing for months from proponents of the bill that the boy child was not covered but this law passed by Parliament appears to include both males and females. The 2007 law is on the books and should be quite sufficient, if I read it corrently, to cover any defilement of minors.

UPDATE: In this document published by the Refugee Law Project, I located the text of the Penal Code Amendment Act.


An Act to amend the Penal Code Act 

BE IT ENACTED by Parliament as follows:

1. Abolition of corporal punishment

(1) Corporal punishment is abolished and accordingly, all references to corporal punishment in the Penal Code Act in this Act referred to as the principal Act, are repealed.

(2) Without prejudice to the general effect of subsection (1) of this section, Section 125, subsection (2) of section 129 and section 205 of the Penal Code Act, are amended by the repeal of the words “with or without corporal punishment”.

2. Section 129 of the Penal Code Act replaced

The principal Act is amended by substituting for section 129 the following new sections—

Defilement of persons under eighteen years of age

129. (1) Any person who performs a sexual act with another person who is below the age of eighteen years, commits a felony known as defilement and is on conviction liable to life imprisonment.

(2) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years commits an offence and is on conviction, liable to imprisonment not exceeding eighteen years.

(3) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

(4) The circumstances referred to in subsection (3) are as follows—

(a) where the person against whom the offence is committed is below the age of fourteen years;

(b) where the offender to his or her knowledge, is infected with Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency Syndrome(AIDS);

(c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed; or

(d) where the offender is a serial offender.

(5) Any person who attempts to perform a sexual act with another person below the age of eighteen years in any of the circumstances specified in subsection (4), commits an offence and is liable on conviction, to imprisonment for life.

(6) In this section unless the context otherwise requires—

“serial offender” means a person who has a previous conviction for the offence of defilement or aggravated defilement;

“sexual act” means penetration of the vagina, mouth, or anus, however slight, of any person by a sexual organ or the use of any object or organ by a person on another person’s sexual organ

“sexual organ” includes a vagina or penis.

Makerere University Law School Dean, Sylvia Tamale, refers to these amendments in this analysis of the Anti-Homosexuality Bill.

Sexual crimes against children are already criminalised under Ugandan law. Section 129 of the Ugandan penal code provides that ‘any person who performs a sexual act with another person who is below the age of 18 years, commits a felony known as defilement and is on conviction liable to life imprisonment.’24 This section also provides for the offence of ‘aggravated defilement’ punishable by death.[25]

Existing provisions on ‘defilement’ and ‘aggravated defilement’ under the penal code do not differentiate between same-sex and heterosexual sexual abuse. Hence it is not clear what the proposed offence of ‘aggravated homosexuality’ under the Anti-Homosexuality bill aims to achieve.

Not clear, indeed. When David Bahati and Martin Ssempa says that the Anti-Homosexuality Bill aims to extend existing protections to the “boy child,” I can only assume that they are unaware of the Penal Code Amendment Act of 2007. The stated reason for the Anti-Homosexuality Bill disappears when one examines the current law.

More on this:

Other sources refer to The Penal Code Amendment Act of 2007 as being a part of an overall effort to prosecute the growing problem of child sexual molestation in Uganda, the majority of it being girls molested by men. On Page 8 of this United Nations report on violence against women, the Ugandan Section 129 is reproduced as I have it above. And then in this July, 2008 report filed by the Ugandan chapter of the African Network for Prevention and Protection against Child Abuse and Neglect (ANPPCAN), the Penal Code Amendment Bill is referred to.

Thus in 2007, Parliament passed the Penal Code Amendment Bill and the Magistrates Courts Amendments Bill…The new amendments took effect two months ago and the judiciary is currently transferring case files from the high court to the magistrates’ courts.

Thus, according to this source, the Penal Code Amendment Act took effect at least by the Spring of 2008. I suspect it was in force earlier as indicated by this August 1, 2007 statement by Uganda’s Deputy Attorney General Fred Ruhindi (“recently we passed the Penal Code (Amendment) Bill. I believe that by now that Bill may already be assented to.”), although awareness of the law might not have been great. Thus, complaints that current Ugandan law does not cover abuser of “the boy child” seem to be incorrect.