IHRDA SGBV Database

Case brief
UGANDA V HAMIDU YIGA
The first , third and fourth accused were indicted for rape contrary to sections 123 and 124 of
the Penal code Act. It was alleged that Yiga had unlawful sexual intercourse of Nassuna
Rehema, without her consent. The prosecution alleged that the father of Nassuna reached an
agreement with Yiga to wed Nassuna to him. Yiga had previously lost his wife allegedly due
to HIV and it was insisted that he first take an HIV test before marrying Nassuna. When Yiga
came to take Nassuna away from her home as his wife, the family refused him because he
had not tested for HIV.
Yiga then hired a police officer Basheija and one, Kasiita Swaibu to apprehend the accused.
She was arrested and locked up in and later delivered to Yiga’s home in the company of her
own father. Upon arrival, she resisted having sex with Yiga but he called two young men to
hold her hands and legs while he had sexual intercourse with her.
In defense, the accused said he had paid dowry of Uganda Shillings 100,000 only to the
victim’s father and therefore she was his wife. He agreed that he had sexual intercourse with
the victim but stated that it was lawful because he was the husband of Nassuna. He added by
virtue of being his wife, she had consented to the sexual intercourse.
The issue was whether the prosecution had proved the case of rape against the accused
beyond reasonable doubt. The defense strongly alleged that Nassuna had given implied
consent alleging that the sex was a mere consummation of marriage.
Court held that, section 123 which criminalizes rape does not make an exception to a married
person. The existence of a valid marriage between the accused person and the complainant
can no longer constitute a good defense against a charge of rape after promulgation of the
1995 constitution.
Court applied Art 31(1) which guarantees men and women equal rights in marriage. Court
emphasized that a man and woman enjoy equal human dignity and that in this case the
dignity of Nassuna had trampled upon significantly because she was treated like a mere
sexual instrument. The presumption of consent even where a man and woman are married is
wiped out by the constitutional provision. The accused where found guilty for rape.