David Batema, High Court judge. Photo/Courtesy
A cold war is brewing between prosecutors from the Office of the Director of Public Prosecutions (DPP) and High Court Judge David Batema over the legal interpretation of whether girls below the age of 18 can be raped.
The tension reached a boiling point last Friday when prosecutors boycotted a criminal session presided over by Justice Batema at the Arua High Court.
This newspaper understands that after the judge realised prosecutors had deliberately refused to appear before him, he dismissed the charges against the accused. However, anticipating the judge’s move, the prosecution had already deployed police officers, who swiftly re-arrested the suspects whose charges had just been dismissed by Justice Batema.
The standoff began on April 4, when a tense exchange unfolded in court. Justice Batema directed the prosecution led by Mr Ronald Businge to amend rape charges against three suspects —Morish Angupale, Feni Norman, and Drani Denis — to simple defilement.
The judge’s directive stemmed from the fact that the victim was a 14-year-old girl. He argued that because she was under 18, she could not legally consent to sex, and, therefore, the accused could not be charged with rape. “It is hereby ordered that the State amends the indictment to simple defilement contrary to Section 129(1) of the Penal Code Act, since the facts in the committal papers reveal alleged offences against a girl above 14 years of age, not being a woman,” Justice Batema ruled.
Section 110 of the Penal Code Act defines rape as unlawful carnal knowledge of a woman or girl without consent, or where consent is obtained through force, threats, intimidation, or false representation. But in response, Mr Businge told the judge that his supervisors at the DPP’s office had informed him that he had no authority to amend the charges.
He said doing so would amount to usurping the powers of the DPP, who is solely mandated to amend or withdraw charges. “As you have ordered, I tried to comply. But I was informed by my supervisors—the Deputy Director of Public Prosecutions in charge of prosecutions, that I have no powers to amend the charges,” Mr Businge told court.
Justice Batema fired back, insisting his court order must be obeyed. “No, it is an order of the court. You either obey it, or the court will decide what is best in the interest of justice. The DPP will not tie my hands in this session,” the judge said.
Trapped between judicial authority and administrative instruction, the prosecutor requested a short adjournment to consult further, but this was rejected. “Adjournment not granted. Proceed,” Justice Batema ruled. “I’m unable to proceed,” Mr Businge responded.
As a result, Justice Batema dismissed the charges. “The case is dismissed for want of prosecution. The accused are discharged in the interest of justice unless held on other lawful grounds,” he ruled.
Justice Batema warned that any future defiance by State counsel could lead to contempt of court charges. Sources within the DPP’s office say that following this warning, prosecutors decided to boycott the judge’s entire session, which had begun the previous Friday. This publication has since learned that due to the impasse, the acting Principal Judge called off the session.
A typical criminal session includes about 40 cases and runs for approximately 40 days. Speaking to this publication, Justice Batema stood his ground, arguing that a girl under 18 cannot legally consent to sex and thus cannot be a victim of rape—since lack of consent is a key ingredient in proving rape.
“Children don’t consent. Anyone below 18 cannot give consent. And with rape, we rely on the presence—or absence—of consent. Even if there appears to be consent, it has no legal effect,” he stated.
Director of Public Prosecutions (DPP) Jane Frances Abodo speaks during an interview with Monitor at her office in Kampala on August 5, 2024. PHOTO/ISAAC KASAMANI
Justice Batema defends his position
When asked about Section 110, which defines rape as involving a woman or a girl, the judge cited his 2015 ruling in Uganda v. Julius Kusemererwa, in which he concluded that only adult women can be raped because only they can legally consent or withhold consent. “In my judgment in Uganda v. Kusemererwa, I differentiate between defilement, aggravated defilement, and rape. That decision has never been appealed. So, girls below 18 cannot be raped because they lack legal capacity to consent,” Justice Batema explained.
He added: “When Parliament created the new offence of simple defilement, it could not have intended to retain any age of girl as a victim of rape under Section 123.
It’s either an omission or poor legislative draftsmanship. The word ‘girl’ in that section is redundant and meaningless.” On whether his session had been officially halted, Justice Batema clarified that while no formal cancellation had been issued, the Acting Principal Judge, Ms Anna Bitature Mugenyi, was consulting with the Chief Justice on the way forward.
“The session hasn’t been officially called off. But what I know is that the Acting Principal Judge is consulting the Chief Justice. However, once a judge is empaneled for a session, he or she directs its course and cannot be overruled by external parties,” Justice Batema said.
DPP spokesperson Jacquelyn Okui confirmed the session had been halted and said the contentious issues had been escalated to the DPP for resolution.
Contradicting court rulings
This standoff comes amid conflicting rulings by different High Court judges over whether girls under 18 can be raped.
Justice Celia Nagawa, in a recent session at Soroti High Court, held that the DPP in Uganda v. Arugai Filbert should have charged the suspect with defilement, not rape.
The victim was 16 years old. In her ruling dated April 9, Justice Nagawa dismissed the rape charge. “The case summary clearly indicated that the victim was a 16-year-old pupil. It is troubling that the DPP chose to proceed with a charge of rape instead of the appropriate charge of defilement,” she said.
She added: “Such prosecutorial missteps not only undermine justice but also re-traumatize victims. Since consent is immaterial in cases involving minors, the offence of rape cannot stand. I therefore find that no prima facie case has been made. The accused is acquitted of rape and shall be released unless held on other charges.”
Uganda Vs Ivan Kirya
Conversely, in Uganda Vs Ivan Kirya, Justice Aluzze Aisha Batala at Mbale High Court ruled that sexual perpetrators of girls under 18 can be charged with rape under Sections 110 and 111 of the Penal Code Act.
“I am of the view that Section 110 applies here. The victim’s testimony and medical evidence clearly show that the intercourse was not consensual. Therefore, the ingredient of lack of consent has been proved,” ruled Justice Batala.
When contacted, Judiciary spokesperson James Ereemye Mawanda said the matter is now under review by the acting Principal Judge. “You will have to wait for management’s advice on the way forward,” he said.
