Kadaga okays law to jail rapist husbands

KAMPALA.

The Speaker of Parliament, Ms Rebecca Kadaga, has cleared a new Bill that seeks to criminalise “marital rape” – now called “marital sexual assault” – and introduce a new offence of “aggravated rape”, which will see the offenders get a death sentence on conviction.

The Sexual Offences Bill tabled by Female Youth MP Monicah Amonding last Thursday, wants to repeal some sections of the Penal Code Act and consolidate laws relating to sexual offences; combat sexual violence; provide for punishment of perpetuators of sexual offences and provide for procedural and evidential requirements during trial of sexual offences. After the architects of the Sexual Offences Bill 2015 failed to get the Certificate of Financial Implication (CFI) from Ministry of Finance, Ms Kadaga allowed the Bill to proceed and sent it to the Legal and Parliamentary Affairs Committee for further scrutiny and input.

The new Bill is backed by members of Uganda Parliamentary Women Association (UWOPA) and has been welcomed by a cross-section of MPs and gender activists who say it has been long overdue and should be supported.

Failed laws
“By the time we introduce such a Bill, it means the current laws have not been effective enough in dealing with such offences. This Bill is trying to introduce more stringent measures to deal with men and women involved in such cases and may be the incidences will reduce,” said Ms Cecilia Ogwal, the Dokolo District Woman MP.

Ms Jackie Asiimwe-Mwesige, a lawyer and human rights activist, said: “What we have failed to confront is that marital rape actually happens in marriage and that is sexual violence. It might not require a death penalty but we must address it.”

She however, had no illusions that this proposed law was the panacea to sexual violence in the country, saying that having a law is one thing but having it work is another.

“No matter how good a law you have, if the rest of the judicial system is not working, it will not help,” she reasoned.

Section 2 (1) of the new Sexual Offences Bill states: “Any person who forcefully performs a sexual act on another person, without consent, or with consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, or by means of false representations as to the nature of the act, or in case of married person by impersonating his or her spouse commits the felony termed as rape and shall on conviction be liable to life imprisonment.”

For the purposes of an offence under Section 2 (1), where the spouses are living together, a spouse may refuse consent to a sexual act “on any ground” which may include – poor health or medical condition of the spouse refusing to perform a sexual act, evidence or reasonable fear that engaging in a sexual act is likely to cause injury or harm to the spouse refusing to perform a sexual act or any other ground deemed to be reasonable by the courts of law.

Possible punishment
“A spouse who performs a sexual act with his or her spouse without the consent of that spouse, whether the spouse are living together or in separation, commits an offence known as “marital sexual assault” and is liable upon conviction to imprisonment to a period not less than one year or a fine not less than 24 currency points [about Shs480,000],” the Bill reads in part.

Earlier, attempts to introduce “marital rape” in the Marriage and Divorce Bill stoked controversy when some critics to the proposed law argued that such a move would vulgarise the institution of marriage and depicted men as “beasts”. The Marriage and Divorce Bill had also proposed that the unmarried people in a cohabiting relationship be allowed to share property, and also attempted to abolish marriage gifts. This Bill remains pending.

The new Bill is likely to stoke the same controversy both in the House and among the public if Mbarara Municiplaity MP Medard Bitekyerezo’s earlier view is anything to go by. “Who will go to court to testify that she has been raped by her husband? How do you say that somebody has raped his wife? They are bringing back the Marriage and Divorce Bill but sugar-coating it. They will break families,” he told Sunday Monitor yesterday.

The mover of the Bill insists, however, that the proposed law only seeks to consolidate sexual offences into one law.
“The main objective of the Bill is to put together all sexual offences without amending the different laws that have been there. It introduces new clauses like sex with somebody in authority. For instance, cases where teachers, relatives, professionals and entrusted people defile children,” Ms Amoding told this newspaper.

With regard to the new offence of aggravated rape, the new Bill under Section 3 states that: “Where Court is satisfied that there are aggravating circumstances in the commission of the offence of rape, the person shall upon conviction, be liable to suffer death.” And in determining whether there are aggravating circumstances, the Court shall take into account but not be limited to the following: Whether or not the offender has HIV, infected with a sexually transmitted disease, serial offender, whether or not the victim suffers disability, whether or not the act constitutes gang rape, whether the offence was committed in the presence of a child and the age of a person against whom the offence was committed.

Five years in jail
According to the Bill, an attempt to commit rape attracts a five-year jail term on conviction, one year in jail for sexual assault and two years for sexual harassment. A sexual act with a person incapable of giving consent attracts a jail term of three years and seven years for improper sexual act with a prisoner.

The Bill buttresses the ban on prostitution and calls for a seven-year jail term for vending sex and two years in prison for clients buying prostitutes. The Bill also bans sexual exploitation of prostitution (pimping), incest, sexual assault, detention with sexual intent, child pornography, sexual harassment in offices and other places.

Although the word “homosexuality” is not mentioned anywhere in the text, Section 16 of the Bill suggests life imprisonment for people convicted of “unnatural offences”. In the Uganda Penal Code Act, homosexuality is construed as an “unnatural offence” as it is considered to be against the order of nature.

The controversial Anti-Homosexuality Bill that had been passed by Parliament in December 2104 was annulled by courts of law for lack of quorum during the final debate and approval. The Bill, which is expected to be returned in the 10th Parliament sought to make same-sex punishable by life imprisonment upon conviction.

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