The child-to-child sex offence under the Penal Code Court Act for which juveniles have been charged for involvement in sexual acts has been outlawed.
Masindi High Court judge Paul Gadenya, in his April 14 landmark decision, held that the current loose application of the offence is misjudged and should stop.
Child-to-child sexual abuse is where a juvenile (child aged between 10 and 18 years), is sexually abused by one or more children with no adult directly involved.
“In conclusion, the law does not create the offence of child-to-child sex. The use of the phrase ‘child-to-child sex’ in the marginal notes to Section 129 Act of the Penal Code A is, therefore, misleading to the extent that it creates the offence of child-to-child sex,” ruled Justice Gadenya.
“Section 129 A of the Penal Code Act does not create the offence of child-to-child sex. The Section only provides the procedure for dealing with child offenders, who are charged with defilement. Accordingly, I direct the registrar of the High Court, Masindi to transmit this ruling to the Chief Magistrate, Masindi and serve a copy of the same to the office of the Director of Public Prosecutions,” he added.
According to the 2019 annual Police Crime & Traffic Safety Report, there were 547 juveniles involved in sexual related offences, 424 of whom were males.
The ruling rose after Justice Henrietta Wolayo declined to hear a case in which two juveniles were allegedly involved in sex.
Julius Omirambe, 17, had been accused of defiling a girl of 12 years (name withheld for being a minor) at Nyabyeya Village in Masindi District on July 29, 2014.
Justice Wolayo, basing on Section 129 A (2) of the Penal Code Act, advised that since the victim and her alleged perpetrator were below 18, this was a case of child to child sex. The judge recommended that the file be sent the Chief Magistrate’s Court for trial of the accused person on the same crime.
The directive by Justice Wolayo did not go down well with the prosecution, raising two points of law that necessitated the opinion of another judge. Justice Gadenya directed that the accused person instead be charged with defilement.
According to Section 129 of the Penal Code Act, any person who has sexual intercourse with a girl under the age of 18 years is liable to suffer death on conviction.