Kalali contests Section 115 of the Penal Code Act, which criminalizes indecent assaults and insulting the modesty of a woman or girl, punishable by 14 years or 1-year imprisonment, respectively.
Human
Rights lawyer Steven Kalali has petitioned the Constitutional Court,
challenging the constitutionality of certain provisions in the Penal Code Act
and the Magistrates' Courts Act.
Specifically,
Kalali contests Section 115 of the Penal Code Act, which criminalizes indecent
assaults and insulting the modesty of a woman or girl, punishable by 14 years
or 1-year imprisonment, respectively.
He
argues that this provision is discriminatory, as it only protects the female
gender and not the male gender, violating Articles 21, 20, and 28 of the
Constitution of Uganda, which guarantee equality before the law and
non-discrimination based on sex.
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Furthermore,
Kalali challenges Section 42 of the Magistrates' Courts Act, which empowers
magistrates to participate in consultations and investigations about the
commission of an offense.
He
asserts that this provision compromises the principle of impartiality and the
right to a fair trial, as the magistrate effectively acts as both investigator
and judge.
Kalali's
petition seeks several reliefs, including declarations that the contested
provisions are unconstitutional, orders annulling these provisions, and
permanent injunctions restraining the respondent and its agents from enforcing
them.
The
petitioner, an advocate and strong believer in the rule of law, constitutional
governance, and human rights, states that he has brought this petition in the
public interest. He argues that the provisions in question promote inequality,
undermine the right to a fair trial, and perpetuate injustice, particularly
against male Ugandans.
Kalali
cites the case of Uganda Law Society President Senior Counsel Isaac Ssemakadde,
who is currently facing charges of insulting the modesty of a woman at Buganda
Road Chief Magistrate's Court, as a recent example of the injustice perpetrated
by these provisions.
He
urges the court to declare the provisions unconstitutional to promote equality,
fairness, and justice in Uganda's legal system.
“That
if the provisions of section 115 (1) & (3) of the Penal Code Act are not
annulled, it is likely to cause/promote anarchy as many male Ugandans continue
to face injustice/unfair trials as against the female gender, the recent
example being one of Mr. Ssemakadde Isaac who is under trial at the Chief
Magistrate's Court of Kampala at Buganda Road over similar charges,” reads the
petition.
In
addition to the discriminatory nature of Section 115, Kalali also argues that
it violates the principle of equality before the law, as enshrined in Article
21 of the Constitution. He contends that the provision's failure to protect the
male gender from similar forms of assault and insult is a clear infringement of
their rights.
Kalali
further asserts that the provisions of Section 42 of the Magistrates' Courts
Act are not only unconstitutional but also undermine the integrity of the
judicial system. By allowing magistrates to participate in investigations and
consultations, the provision creates a conflict of interest, which can lead to
biased decision-making and undermine the right to a fair trial.
The
petitioner also argues that the international community recognizes the
importance of equality before the law and the right to a fair trial. He
cites various international treaties and conventions, including the Universal
Declaration of Human Rights and the African Charter on Human and Peoples'
Rights, which Uganda has ratified. Kalali contends that these treaties obligate
Uganda to ensure that its laws and practices conform to these international
standards.
Orders
Sought
- A declaration that the provisions of Section 115 of the Penal Code Act are
unconstitutional because they discriminate against the male gender.
-
A declaration that the provisions of Section 42 of the Magistrates' Courts Act
are unconstitutional because they violate the principle of impartiality and the
right to a fair trial.
-
An order annulling the provisions of Section 115 and Section 42 for being
unconstitutional.
-
A permanent injunction restraining the respondent and its agents from enforcing
the provisions of Section 115 and Section 42.
The
Constitutional Petition comes barely a week after the Buganda Road Court Chief
Magistrate Ronald Kayizzi summoned the Uganda Law Society President Isaac
Ssemakadde to appear before him on January 29th, 2025, and answer charges of
insulting the modesty of a woman (The Director of Public Prosecutions Jane
Frances Abodo).