Court dismisses charges of unnatural offences against two men

By hrapf
In October 17, 2014
On Blog
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The Chief Magistrates Court at Buganda Road has agreed with the prayers of the accused’s lawyer and dismissed the charges against two men.

This is in the case of Uganda v. Mukisa Kim and Mukasa Jackson, Criminal Case No. 0085 of 2014. The two accused persons, a gay man and trans woman were arrested on the 27th and 28th of January 2014 respectively by the Police following a mob’s attempt on the former’s life.

The two men were arrested on 27th January 2014 after one of them thrown out of his house and beaten by local council authorities assisted by residents on the basis of allegations that he was a homosexual. The police arrested one first and used her to call another one to the police station where he was also arrested. The two were subjected to HIV examinations without their consent, and one of them had an anal examination performed on him. Both were paraded before the media as homosexuals.

One of them was charged with ‘having carnal knowledge of a person against the order of nature’ contrary to Section 145(a) of the Penal Code Act Cap 120 and the other was charged with ‘permitting a male person to have carnal knowledge against the order of nature’ contrary to Section 145(c) of the Penal Code Act Cap 120.

They spent seven days in police custody without being produced in court. They were only produced before court when their lawyers from Human Rights Awareness and Promotion Forum (HRAPF) wrote to the Inspector General of Police and the Uganda Human Rights Commission complaining about the continued illegal detention.

They were then remanded to Luzira Prison, and produced in court again on 21st January 2014 and though they were granted bail, the Magistrate insisted on a letter from the same local council officials who had thrown one of them out of his home, and also on two sureties. The Local Council authorities refused to write the letter until HRAPF lawyers told them that they would be in contempt of court if they continued to do so. A letter with a disclaimer was later written. For the sureties, the magistrate eventually accepted one surety and both accused persons were released on bail on May 7th and 12th 2014, after spending a period of 4 months in detention.

From the time of their release todate, the case has been adjourned four times and each time the prosecution failed to produce any witnesses. Prayers to dismiss the case by the accused’s lawyers were not granted in order to give the prosecution more time.

Today, when the prosecution again failed to produce its witnesses, the State Attorney requested for another adjournment. The accused’s lawyer, Ms. Fridah Mutesi from HRAPF responded by asking the Magistrate, Ms. Lilian Bucyana to dismiss the case for want of prosecution. She recounted the number of times that the accused had been appearing in court without the state producing its witnesses and she concluded that the failure of the state to produce witnesses was prejudicial to her clients who have had charges that attract a penalty of life imprisonment hanging over their heads since January 2014.

The Magistrate agreed with Ms. Mutesi  and ruled that “The prosecution was granted the last adjournment and has no sufficient reason to ask for further adjournment the case is hereby dismissed under S.119 of the Magistrates Courts Act”

Though dismissal of charges does not bar future prosecution as the charges could be reinstated by prosecution, the two accused persons are now free. Of course their lives have been shattered by the charges and this indeed is the greatest effect of laws criminalising consensual same sex relations in a country that is largely homophobic.

The dismissal of the charges is very exciting news but it also underlines the danger of having such laws on the law books.

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