5 REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT KAMPALA
(CORAM: TUMWESIGYE; MWANGUSYA; OPIO-AWERI; MWONDHA;
TIBATEMWA-EKIRIKUBINZA, JJ. S.C.)

10
C R IM IN A L A P P E A L NO: 3 4 O F 2 0 1 5

BETW EEN

NTAMBALA FRED :::::::::::::::::::::::::::::::::::::::::::::::: A P P E L L A N T

15
AND
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::R E S P O N D E N T

20 [A ppeal a g a in s t th e ju d g m e n t o f th e C ourt o f A ppeal a t K am pala (K a su lc, B u teera

and K akuru, JJ.A ) C rim in al A ppeal No. 1 7 7 o f 2 0 0 9 d a ted 1 1 th F eb ru ary, 2 0 1 5 ]

JUDGMENT OF THE COURT

25 Ntambala Fred, the appellant, was indicted for Aggravated

Defilement contrary to section 129(1) of the Penal Code Act. He was
tried by the High Court (Elizabeth Musoke, J) (as she then was),
convicted and sentenced to 14 years imprisonment. He appealed to

[i]
 5 the Court of Appeal which upheld his conviction and sentence,
hence this appeal.

B ackground

Irene Namata (PW4) aged 14 years was a daughter to the appellant

and lived with him in the same house in Kireku village in Mpigi
10 District. On 26th March, 2006, at around 4:00 p.m., village children
who believed that the appellant was having sexual intercourse with
PW4 threw stones at his house. The appellant came out of the
house brandishing a panga and threatened to cut them. He
returned to the house but the incident had attracted people from
15 the village who came to the appellant’s house. Some entered the
house and found used condoms there and arrested him. They took
him to the police station from where he was later taken to court and
indicted for the offence of Aggravated Defilement. He was tried in
the High Court, convicted and sentenced to 14 years imprisonment.

20 His appeal against conviction and sentence having been dismissed

by the Court of Appeal, the appellant appealed to this court on only
one ground framed as follows:

T hat th e H on ou rab le J u s t ic e s o f A ppeal erred in law w h en th e y

failed to a d e q u a te ly re-appraise th e e v id e n c e a d d u ced b efore
25 th e trial c o u r t an d th erefo re u p h eld th e c o n v ic tio n o f th e
ap p ellan t for d e file m e n t.

[2]
 5 The appellant prayed that this court quashes the conviction and
sets aside the sentence imposed.

C o u n se l’s s u b m issio n s

Mr. Senkezi Steven appeared for the appellant on state brief while
Ms. Alice Komuhangi Khaukha, Senior Principal State Attorney,
10 appeared for the respondent.

Learned counsel for the appellant submitted that the learned

Justices of Appeal failed in their duty to adequately re-appraise the
evidence before the trial court thereby wrongly upholding the
conviction and sentence. More specifically, counsel contended that
15 the court erred in law when it failed to re-appraise the evidence
concerning the condoms allegedly used by the appellant. He
asserted that while PW5, a neighbor to the appellant, testified that
they found two condoms used in the house, PW4 testified that it
was only one condom which was used. He contended that this was
20 contradictoiy and that, therefore, the learned Justices of Appeal
erred in law when they ruled that PW4’s evidence was sufficiently
corroborated by PW5’s evidence.

Counsel submitted further that there was no scientific evidence to

link the usage of the condoms to the appellant and the victim. He
25 submitted that the judgment of the Court of Appeal was too general
and lacked specifics. He prayed that this Court finds that the Court
of Appeal did not properly re-evaluate the evidence before
confirming the conviction and sentence.
[3]
 5 Learned counsel for the respondent, on the other hand, supported
the decision of the Court of Appeal. She submitted that the learned
Justices of Appeal did not make any error in finding that the
evidence of PW4 was sufficiently corroborated. She submitted that
the duty of a first appellate court articulated in P a n d y a v. R [1 9 5 7 ]
10 EA 3 3 6 and K ifa m u n te H enry v s. U ganda C rim in a l A ppeal No.
10 o f 1 9 9 7 is to re-appraise and re-evaluate the evidence presented
before the trial court and the materials thereto. The appellate court
must then make up its own mind not disregarding the judgment
appealed from but carefully weighing and considering it.

15 Counsel argued that there was no contradiction between the

evidence of PW4 and PW5. The fact that PW4 testified that one
condom was used did not mean that PW5 could not find another
condom. Besides, the number of used condoms was immaterial.
She submitted that the material evidence was that by the time the
20 villagemates came, the appellant was in the house with the victim
and had already had sexual intercourse with her.

She further argued that the conduct of the appellant was not
consistent with that of an innocent person when he came out with a
metallic bar brandishing it and threatening to cut those who had
25 thrown stones at his door.

She further submitted that the learned trial Judge who observed
PW4 when testifying said in her judgment that even if there was no
corroborating evidence to the claim of the victim that it was the

[4] 1
 5 accused who sexually assaulted her, the court would still go ahead
and act upon her evidence because the court was satisfied that the
complainant was a witness of truth who gave evidence in a
consistent and straight forward manner relating to how the accused
sexually assaulted her.

10 Counsel prayed that this court dismisses the appeal and upholds
the conviction and sentence against the appellant.

C o n sid era tio n o f th e ap p eal.

This is a second appeal and the duty of a second appellate court is

to determine whether the 1st appellate court properly re-evaluated
15 the evidence before the trial court by subjecting it to fresh scrutiny
before coming to its own independent conclusion.

It is settled law that it is only in the clearest of cases when the 1st
appellate court has not satisfactorily re-evaluated the evidence that
a 2nd appellate court would interfere with the decision of the 1st
20 appellate court. (See: K ifa m u n te H enry v s. U ganda (supra) and
P andya v s. R (supra)).

On 1st appeal the Court of Appeal is precluded from questioning

(
findings of the trial court provided that there was evidence to
support those findings, though it may think it possible or even
25 probable that it would not have itself come to the same conclusion.
It can only interfere when it considers that there was no evidence to

[5]
 5 support a finding of fact: (See: R. v s . H a ssa n B in S a id [1942] 9
EACA 62).

We have carefully read the judgment of the Court of Appeal and we

have studied the Record of Appeal and the Record of Proceedings
including the judgment of the trial court.

10 In performing its duty as a 1st appellate court, the Court of Appeal

considered the evidence of PW4. She testified that the appellant was
her father and had been having sexual intercourse with her almost
everyday for the last two years. She together with her young sister
were sharing one bed with the appellant. She stated that though
15 she felt pain in the stomach whenever he had sexual intercourse
with her, she feared to report him to any person because he had
threatened to cut her into pieces if she reported him and that on
the day of his arrest, the appellant had had sexual intercourse with
her.

20 The learned Justices of Appeal also considered the evidence of PW5

whose evidence was that as he approached his home at around
3:00 p.m., he saw people gathered around the appellant’s house. He
was warned that the appellant was violent and saw him holding a
metallic bar threatening to use it against people who were at his
25 house. He entered the appellant’s house and found there two used
(
condoms and others which were not used. The local people arrested
him and took him to the police station.

[6]
The court also considered the evidence o f PW7 and found it
sufficiently corroborative of PW4’s evidence. PW7, (defence secretaiy
of the village) stated that on 26th March, 2006, he heard a mob
shouting at Ntambala’s home. He rushed to the scene and upon
arrival, he asked PW4 whether it was true that their father had had
sexual intercourse with them. She said “yes” . About the allegations
of condoms, PW7 stated that he saw the condoms in Ntambala’s
house; two were used and four were unused.

The Court of Appeal also considered the medical evidence which

was to the effect that PW4’s hymen was ruptured sometime back.
On the issue of ruptured hymen they referred to the case of M ukasa
SCCA No. 53 of 1999, in which the court
held, among other things, that the rupture of the hymen of a victim
of defilement was not essential for arriving at a verdict of
defilement. “..W hat w ou ld be o f e s s e n c e is w h e th e r o n th e
ev id e n c e a v a ila b le, th e p r o se c u tio n has p roved b ey o n d
reason ab le d ou b t, th a t th e a c c u se d before c o u r t had had se x u a l
in ter co u r se w ith th e ch ild . T he fa ct th a t a c h ild ’s h y m e n is
already ru p tu red d o e s n o t m ea n th a t t h e v ic tim c a n n o t be
defiled su b se q u e n t to th e rapture o f th e h y m e n .”

Alongside the evidence of the above prosecution witnesses, the

Court of Appeal also considered the appellant’s defence of alibi. The
court found that since the appellant was arrested at the scene of
crime in broad day light, he was placed at the scene of crime.
Therefore, the defence of alibi was not available to him.
[7]
 5 It is, therefore, clear to us that the Justices of Appeal re-evaluated
the evidence, scrutinized it and reached their own conclusion as to
the guilt of the accused.

Before this court, counsel for the appellant specifically submitted

that the evidence of PW4 was not sufficiently corroborated so as to
10 warrant a finding that the appellant committed the offence. In their
judgment, the Justices of Appeal pointed out that the trial Judge
had made a finding that there was other evidence that sufficiently
corroborated the defilement. The learned Justices of Appeal
addressed their mind to the law on what amounts to corroboration
15 as stated in U ganda v s. G eorge W ilson S im b w a (SC) C rim inal
A ppeal No. 3 7 o f 1 9 9 5 wherein it was held that:

“C orroboration a ffe c ts th e a c c u se d by c o n n e c tin g or

te n d in g to c o n n e c t h im w ith th e crim e. In o th e r w ords it
m u st be e v id e n c e w h ic h im p lic a te s h im , w h ic h c o n fir m s in
20 so m e m a teria l p a rticu la r n o t o n ly th e e v id e n c e th a t th e
crim e h a s b e e n c o m m itte d b ut a lso th a t t h e d efen d a n t
c o m m itte d it. T he t e s t ap p licab le to d e te r m in e th e n atu re
and e x te n t o f corro b o ra tio n is th e sa m e w h e th e r it falls
w ith in th e rule o f p r a c tic e at c o m m o n law or w ith in th e
25 c la ss o f o ffe n c e s for w h ic h corrob oration is r e q u ir e d .”

As seen from the above holding, corroboration is evidence from

other sources which supports the testimony of the complainant and

[8]
connects or tends to connect the accused person to the commission
of the crime.

The value o f corroboration is rooted in the legal standard (proof

beyond reasonable doubt) that must be met by the prosecution in
order to secure a conviction. Consequently, the prosecution may
find it necessary to adduce evidence from more than one witness in
order to prove their case beyond reasonable doubt.

Nevertheless, section 133 of the Evidence Act provides that:

“S u b ject to th e p r o v isio n s o f any o th e r law in fo rce, no
p articu lar n u m b er o f w itn e s s e s sh a ll in a n y c a s e be req u ired for
th e p ro o f o f a n y fa c t. ’’(Our emphasis).

Consequently, a conviction can be solely based on the testimony of

the victim as a single witness, provided the court finds her to be
truthful and reliable. As stated by this court in S ew a n y a n a
L iv in g sto n e v s . U ganda SCCA No. 19 of 2006) “w h a t m a tte r s is
th e q u a lity and n o t q u a n tity o f e v id e n c e .”

We are satisfied that the learned Justices of Appeal properly re­

evaluated the evidence to come to their own conclusion that the
appellant had sexual intercourse with PW4. The complainant took
oath and the learned trial judge found her to be a truthful witness.
Additionally, the evidence implicating the appellant in the
commission of the offence and which corroborated PW4’s evidence
can also be found in the evidence of PW1, PW5, PW6 and the
medical evidence adduced by PW7.
[9]
 5 We agree with the submission of learned counsel for the respondent
that there was no contradiction between PW 4’s evidence and that of
PW5. Whether the witness found two used condoms or one in the
house is, in our view, immaterial. It is not the number of condoms
used that is important in this case but rather evidence showing that
10 sexual intercourse between the appellant and PW4 took place. We,
therefore, find no justification to interfere with the judgment of the
' Court of Appeal.

In the result, we dismiss this appeal. The appellant’s conviction and

sentence are accordingly upheld.

15

Dated this 2018.

JUSTICE OF THE SUPREME COURT

20

JUSTICE OF THE SUPREME COURT

25 Hon. Justice Opio-Aweri

JUSTICE OF THE SUPREME COURT

[10]
 5

OU aa ^ o l <
Hon. Justice Faith Mwondha
JUSTICE OF THE SUPREME COURT

10

Hon. Justice Tibatemwa-Ekirikubinza

JUSTICE OF THE SUPREME COURT

[ii]
 5 THE REPUBLIC OF UGANDA
IN THE SUPREM E COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO. 3 4 OF 2 0 1 5

(Coram: Tum wesigye, Mwangusya, Opio-Aweri, Mwondha and

10 Tibatemwa-Ekirikubinza; JJ.S.C)

BETWEEN

NTAMBALA FRED APPELLANT

15 AND

U G A N D A ................................................................................. RESPONDENT

[Appeal a g a in st the ju d g m e n t o f the Court o f A p p ea l a t K a m p a la (Kasule, B u teera

a n d K akuru, JJA), Crim inal A ppeal No. 1 7 7 o f 2 0 0 9 d a te d 1 1th February, 2015].

20 R e p r e s e n ta tio n :

Mr. S e n k e n z i S te v e n represented the a p p ella n t on S ta te Brief, a n d Ms. Alice

K om uhangi K h a u k h a represen ted the resp o n d e n t

JUDGMENT OF PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA.

25 I am in agreement with the decision of the Court that the appeal has no merit
and ought to be dismissed. 1 also agree that the conviction of the appellant and
the sentence of 14 years imprisonment be upheld.

Nevertheless, this being a defilement prosecution, I have found it pertinent to

discuss the law on corroboration in specific regard to sexual assault cases. For
30 purposes o f clarity, I take note of the fact that the appellant’s ground o f appeal
was that: The learned Justices o f the Court o f Appeal erred in law when they
failed to adequately re-appraise the evidence adduced before the trial court and

1
 5 therefore upheld the conviction o f the appellant fo r the defilement o f Namata
Irene.

However, it was specifically submitted by Counsel for the appellant that the
evidence o f the victim was not sufficiently corroborated so as to warrant a
finding that the appellant committed the offence.

10 As stated in the Judgment of the Court, a conviction can be based on the

testimony of the victim o f an offence even when he/she is a single witness since
the Evidence Act does not require any particular number o f witnesses to prove
any fact and “what matters is the quality and not quantity of evidence.” I must
however emphasize that this must be as true in a sexual assault prosecution as it
15 is in other offences.

I am however aware that historically courts were as a matter o f practice required

to warn themselves of “the danger” of acting on the uncorroborated evidence of
a complainant in a sexual assault case. If no such warning was given, the
conviction would normally be set aside unless the appellate court was satisfied
20 that there had been no failure of justice. Such was the cautionary rule in sexual
offences.

In East Africa the leading authority on this rule has been the decision of the East
African Court of Appeal in Chila and Another vs. R [1967] EA 722 and this
Court has in previous cases followed Chila to overturn convictions by lower
25 courts. (See: Christopher Kizito vs. Uganda, Criminal Appeal No. 18 of
1993; Kibale Ishima vs. Uganda, Criminal appeal No.21 of 1998; Katumba
James v Uganda, Criminal Appeal No. 45/99)

However, as I observed in my book - Criminal Law in Uganda: Sexual

30 Assaults and Offences Against Morality at page 38' - the reasons historically

1 Lillian Tibatem w a-Ekirikubinza (2005) Fountain Publishers, Kampala.

2
 5 given for the need for corroboration o f evidence in a sexual assault prosecution
was that women are by nature peculiarly prone to malice and mendacity, and are
particularly adept at concealing it. I further noted therein that the origin o f the
rule lies in the opinion o f Sir Mathew Hale (Kings Bench England) in 1671
when he said that rape must be examined with greater caution than any other
10 crime as it is easy to charge and difficult to defend. A similar opinion was
expressed by Lord Justice Salmon in R vs. Henry & Manning (1969) 53 Crim.
App Rep 150, 153 that: “in cases o f alleged sexual offences it is really
dangerous to convict on the evidence o f the woman or girl alone. This is
dangerous because human experience has shown that in these cases girls and
15 women do sometimes tell an entirely false story which is very easy to fabricate,
but extremely difficult to refute. Such stories are fabricated fo r all sorts o f
reasons, which I need not enumerate, and sometimes fo r no reason at all. ”(M y
Emphasis)

20 I am nevertheless alive to the fact that as far back as the 1970’s courts in the
region and beyond have posited that the rule has neither scientific nor logical
basis. (See the American case of P vs. Rincon-Pineda (14 Cal 3d 864) and the
Namibian case of S vs. Katamba (SA 2/99) [1999] NASC 7; 2000 (1) SACR
162 where the cautionary instruction was held to be a rule without a reason; See
25 also the South African case of S vs. Jackson 1998 (1) SACR 470 (SCA) and
Section 32 (1) of the U.K Criminal Justice and Public Order Act, 1994 which
abolished the said cautionary rule on similar grounds.

The rule has also been held to be discriminatory against women.

30

It is universally accepted that a rule which is gender neutral on the face o f it,
can be discriminatory and can constitute gender bias if its outcome
disproportionately disadvantage one gender. The UN Convention on

3
 5 Elimination of All Forms of Discrimination against Women (CEDAW)
defines discrimination against women as:

"...any distinction, exclusion or restriction made on the basis of

sex which has the effect or purpose o f impairing or nullifying the
10 recognition, enjoyment or exercise by women, irrespective o f their
marital status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field." (My Emphasis)

15 It is a statistical fact that the majority of victims o f sexual assaults are women
and therefore the effect o f applying the cautionary rule on corroboration in
sexual offences affects far more women than it does men.

It therefore follows that the cautionary rule violates Uganda’s Constitutional

20 provisions on equality before the law (See: Articles 21, 32 and 33).

As far back as 2002, Lugayizi J in Uganda vs. Peter Matovu, Criminal Case
No. 146/2001 declined to apply the cautionary rule in a case of defilement due
to its discriminatory effect against women and thus its violation of the
25 Constitution as well as Uganda’s international obligations to adhere to
CEDAW. The learned High Court Judge stated that:

... court had not come across any empirical data or basis for
the belief that women are greater liars than men or, for that
matter that they are much more likely to lie than to say the
30 truth in matters concerning sexual allegations. For that reason
it seems that both the belief and the resultant rule have no
logical basis. ... Secondly, and much more importantly, court
thinks that the above rule discriminates against women who,
4
 are by far, the most frequent victims of sexual offences and is,
therefore, inconsistent with Uganda’s international obligations
under various conventions and the Constitution.

[The rule’s] effect is to single out women for disfavor in cases

involving sexual allegations in the sense that it nullifies the
recognition, enjoyment or exercise of their rights to equality
before the law and equal protection of the law. Indeed, in such
cases, the testimony of a victim is ... suspect; and this is,
essentially, because she is a woman or girl! ... Under Article 2
of the Constitution, the fate of any law that is inconsistent with
the Constitution is very clear. Such law is null and void. It
follows, therefore, that the above rule is null and void.

And in Basoga Patrick vs. Uganda, Criminal Appeal No. 42 of 2002, the
Court of Appeal held that the requirement for corroboration o f evidence in
sexual offences is discriminatory against women and is therefore
unconstitutional. The court cited with approval the finding in the Kenyan case
of Mukungu vs. R (2003) 2 EA that: “the requirement fo r corroboration in
sexual offences affecting adult women and girls is unconstitutional to the extent
that the requirement is against them qua women or girls. ”

In Mukungu Supra the court also observed thus:

It is noteworthy that the same caution is not required of the

evidence of women and girls in other offences. Besides there is
neither scientific proof nor research finding that we know of to
show that women and girls will, as a general rule, give false
testimony or fabricate cases against men in sexual offences.

I am convinced that indeed the cautionary rule in sexual offences is not legally
justifiable and I cite the above authorities with approval. And the absurdity of
the rule was clearly brought out by the Supreme Court o f Jamaica in Regina v
Derrick Williams Criminal Appeal No. 12/98. The appellant was convicted of
illegal possession of a firearm and rape. The brief facts were that he approached
the complainant with a gun and demanded that she shut up. He hit her with a
gun in the face causing a wound and thereafter rape her. At his trial he denied
owning a gun and also said he had never seen the complainant until the day of
trial. The major complaint on appeal was that the learned trial judge did not
express that there was no evidence o f corroboration and that being so that he
had warned himself of the danger of acting on the uncorroborated evidence of
the complainant before accepting her a witness of truth.

Speaking of circumstances where the sexual offence is just one o f several

offences charged, e.g. burglary or robbery the court said:

... [there is absurdity in calling for a special warning on

corroboration for the sexual offence when the only issue is
identity]. In those circumstances, if one applies the
corroboration rules strictly, the woman’s evidence about the
identity of the intruder requires no corroboration if he confines
himself to robbing or stealing, but must be the subject of the
usual warning if, having stolen or robbed, he then goes on to
rape the woman, despite the fact that the rape would almost
certainly give her more opportunity and more incentive to
observe and memorise his appearance than the robbery or
theft. If the law demands that in those or similar circumstances
the usual warning should be given by the judge, it puts an
unexpected and unwelcome premium on rape. Presumably also
in such circumstances, the judge would have the task of
explaining to the jury that it would be dangerous to convict on
the uncorroborated evidence of the victim in respect of the
 rape but not dangerous so far as the robbery was concerned.
Moreover, any judge might be forgiven for hesitating long
before adding insult to injury by explaining to a jury the
reasons for the usual warning, namely that the unfortunate
householder, allegedly burgled and raped in her own home,
might have made a false accusation owing to sexual neurosis,
fantasy, spite or refusal to admit consent of which she is now
ashamed or any of the other reasons in R v M anning.

What I must therefore emphasize is that the evidence of a victim in a sexual

offence must be treated and evaluated in the same manner as the evidence o f a
victim of any other offence. As it is in other cases, the test to be applied to such
evidence is that it must be cogent.

I would therefore find it right to proceed under Article 132 (4) of the
Constitution to depart from this Court’s previous decisions cited in this
judgment where the cautionary rule was held to be a requirement in sexual
assault prosecutions.

Dated at Kampala this

Avvj
day o fS ^..f^.!?^.f^.v~|... 2018.

................. .V.~ .................

PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA
JUSTICE OF THE SUPREME COURT.