Good Practices In Adjudication

And Sentencing In Sexual

Gender Based Violence Cases

By Justice Michael Elubu

Background
 What is Sexual Gender Based Violence?

Sexual and gender-based violence (SGBV) refers to any act

that is perpetrated against a person's will and is based on
gender norms and unequal power relationships. 
(UNHCR Emergency handbook)
What Are Sexual Gender Based
Violence Offences?
GENDER BASED CRIMES

Gender based crimes are those crimes committed

against persons, whether male or female, because of
their sex and/or socially constructed gender roles.
Gender-based crimes are not always manifested as a
form of sexual violence. They may include non-sexual
attacks on women and girls, and men and boys,
because of their gender.
(Coalition for the International Criminal Court)
 Sexual Violence

Any sexual act performed on the

victim without consent
 SEXUAL OFFENCES
Sexual Offence

Any crime that involves sexual intercourse or any

other sexual act.

(Oxford Dictionary of Law )

Examples of Offences
• Defilement
• Rape
• Aggravated Trafficking in Persons
• Indecent Assault
• Murder
• Manslaughter
By far the biggest number of reported cases
are Defilement
2019 2020

13,613 14,134

Source: Uganda Police Crime report 2020

Adjudication of SGBV Cases
 PRE TRIAL STAGE

• This is the bedrock of a successful session.

• All initial planning is laid out at this stage

 Cause-listing

1. The process is Managed by the Court

Registrar
2. Find all the Court files
Court 3. Inform and Coordinate with all stakeholders
4. Ensure Equity and fairness. Ordinarily cases
are heard on a first in first out basis.
5. Confirm compliance of accused persons on
bail
 Cause-listing
1. Coordinate with Court
2. Ensure all police files listed are
available
Prosecution 3. Opportunity to weed out
matters that have no merit and
cannot be prosecuted
successfully
4. Trace suspects who have
jumped bail
 1. Liaise with The Registrar of the
Court
2. Confirm the status of the
Uganda Prison Service inmates – healthy, on bail,
escaped, deceased
3. Location of which prison holds
inmate
 Pre – Session Meeting
• It is essential that before hearing commences a pre - session meeting is
convened.
• Every stakeholder participating in the session should either be invited or
represented.
• All parties to make a presentation on their level of preparedness
• It is aimed at ensuring parties resolve critical issues outstanding to ensure
success of the session.
• It is here questions such as time management, handling of accused
persons who wish to plea bargain or plead guilty will be resolved.
• Ascertain status of disclosure
TRIAL
We should all be mindful that we serve the cause of
justice and are here to ensure a fair trial for all parties.

The prosecutor is not seeking a conviction at all costs

or the defence an acquittal whatever the circumstance.

The Court should strive to attain a balance and

equality of arms
 Jurisdiction
• The Court should determine that it has the jurisdiction to hear the
matter

• E.g. Under The Prevention of Trafficking in Persons Act some of the offences
relating to sexual exploitation attract a sentence of life imprisonment while
others are punishable by death.

• It is imperative Judicial officers, particularly Trial Magistrates determine that

they have jurisdiction to try the accused
 PLEA TAKING

• The position is straight forward where the accused pleads ‘Not guilty’

• Where an accused pleads guilty the elements of the offence should be read to
him (see Adan vs Republic [1973] EA 445).

• He should plead to all the elements.

• For example Some accused persons plead guilty to rape but insist the victim
gave consent to the act.
• Or plead guilty to aggravated defilement but insist the victim was above 14 or
18 years of age
 Preliminary hearing
• A necessary case management tool that ensure the expeditious hearing
of the case at the High Court level.

• Agreements on Evidence

• Medical Evidence is vital in Sexual offences. It is the interest of justice that

the medical personnel testify and explain why they arrived at their
conclusions.
 Time Management
• All parties particularly the accused and victims have been waiting a
long time for the hearing.

“Justice is sweetest when freshest; it becomes sour when delayed”

Hon Justice Benjamin Odoki

Avoid any farther delay and ensure all party work towards determing
the case to its logical conclusion
 Hearing
Witnesses

• Prosecution should ensure that it has traced and is ready with its witnesses
• As these Witnesses are either victims or close relatives should be fully
prepped for the Court hearing
• It is ideal to start this process right from the stage of inquiries
• In SGBV cases it would be ideal to introduce witnesses particularly victims to
the Court room before proceeding. A quick tour explaining the set out.
 Psychosocial Support
• Parties should be alive to the need for psychosocial support.

• Seek services of psychosocial specialists if available. For example there are

some in Gulu and around refugee communities that the Court or prosecution
can utilize.
• In Uganda today several persons have trained as counsellors and may be
helpful before, during and after trial
• To avoid re-traumatising victims, the number of people to whom the witness
narrates the story before actual day of testimony should be limited.
• All the parties should strive to avoid stigmatizing, blaming. Court should come
out to protect these witnesses.
 Good Practice
• The Court should always consider taking the evidence of
victims in camera or in chambers. It provides more intimacy
and a perception of security.

• Where the hearing is done in the Court hall, non essential

parties should step out.
 Video link

Adopt use of video link where available.

In Gulu for example it is possible for the witness to testify via an audio
visual link at the premises
Under The Judicature Audio Visual Link Rules 2016 an application must
be made and The Court must grant the order to proceed.
T may be useful now that zoom is widely available.
 Language
Witnesses speak in their vernaculars.

The language is idiomatic and rich in euphemisms clearly understood by the native
speaker which may not be known to the officers of court.

For example:
‘He used me’
‘He caught me’

It is vital to avoid doubt prosecution should encourage the witnesses to narrate as

descriptively as circumstances allow what exactly happened.

References to genitals should be clear and straight forward. Court should be alive to the
local cultural aspects to sex and sex based crimes.
 Emotional Wellbeing

It is relatively common for witness to react emotionally when testifying

Some may break down, cry, laugh or shiver uncontrollably

The Court should manage these circumstances

 Disabled persons
Many victims of SGBV are disabled which is not surprising as these
offences results from unequal power of the parties.

Deaf and Dumb Witnesses/victims

These give evidence either in writing or sign language Section 118 of
The Evidence Act.
The challenge is where they are illiterate in international sign language
and only understood by close relatives who may also be relatives.
Adequate preparation is vital
 Intellectually disabled

• A mentally disabled person is a competent witness.

• The Court should determine whether the witness

properly understands the questions put and can
respond intelligibly
 Children

Children may be victims or ordinary witnesses

Court must determine whether the child is of tender years
Court must conduct a voire dire to determine that:
The child is possessed of sufficient intelligence
Understands the duty to tell the truth
appreciates an the nature of an oath
There is a statutory requirement for corroboration
Children cont’d

Ideally children should give their evidence in chambers because they are
easily overcome and overwhelmed by the Court atmosphere

They should testify in presence of a parent or guardian

(Section 16 of The Children Act Cap 59)

Spouses
• SGBV crimes are sometimes committed by one spouse on the other.
• Spouses are competent but not compellable witness

• However a spouse is both a competent and compellable witness for

the defence. See Section 120 (b) of the Evidence Act
This can be a practical challenge where the spouse committed the
sexual offence on the couple’s child.
Impact Evidence
• This area is neglected.
• Evidence should be led from the victims to show what impact the
offence has had on the victim and the family.
• There should be similar impact evidence from the community. This
will help with a judicious order at the end of the case.
• Expert evidence should be deliberately sought during investigations to
show the impact the offence has heard – use Doctors, Psychiatrists,
Psychologist, Probation Officers, Church Leaders
 Defence
• Court has a duty to protect the fair trial rights of the accused. [Article
28 (3) of the Constitution].
• The accused is entitled to a robust defence. Cross examination should
be allowed however court decorum and professional courtesy must
be maintained.
• Court should determine that the accused has met with and properly
instructed Defence Counsel especially counsel on state brief.
• The language the accused is most conversant with should be
established. Especially where you have migrant workers (herdsmen,
gardeners, refugees)
Defence cont’d

• The Court should step in to avail facilitation for the witnesses the
accused persons wishes to call especially where they are indigent.
• Proper Service in such cases must be ascertained.
• There must be full disclosure before the trial opens
• The Court must be mindful of commoditization of some of the crimes.
Some parents connive to tramp up charges
• Watch for grudges, family and land disputes
• The right of appeal should be properly explained.
SENTENCING
 Sentencing
• The parties should make proper use of the sentencing guide lines
• Sentences are given at the discretion of the Judicial Officer
• That discretion must always be exercised judiciously
• Each case decided on its unique circumstances
• The Court must hold a sentencing hearing which will enable it to
arrive at a sentence that serves the interests of all parties and
stakeholders in the matter
General Principles
• Time spent on remand should be deducted (see Rwabugande vs Ug
SCCA 25 of 2014)
• Consider all mitigating and aggravating factors (see S. 98 of TIA; S. 164
MCA)
• Sentences serve a retributive, reformative or deterrent function. In
making an assessment of appropriate sentences these principles
should be borne in mind.
Sentencing in SGBV
• Circumstances in which the offence was committed. Consider impact of the offence
on the victim
• Evidence of both physical and psychological trauma? What was the nature of injury suffered in
the course of commission of the offence?
• Has the victim suffered stigma? For example where a girl is defiled by her father.

• If a girl did she get pregnant

• What is the age of the convict?

• What is the age difference between the Convict and the victim?
Sentencing in SGBV

• The Court should note the nature of the relationship between the two?

• What are the antecedents of the convict

• Was the convict a person with authority in community or over the victim?

• Were there several or repetitive incidents of commission of the offence against the

victim?

• What has the general conduct of the accused been before, during and after the trial?
Sentencing in SGBV
• Was the conduct suggestive of impunity

• What is the prevalence of the offence committed in the community?

Does it suggest a need for deterrence?

• Likelihood of reform of the offender

• Has the convict made genuine expressions of remorse?

• What will the Impact of sentence be on the wellbeing of the victim?

Has the victim suffered permanent physical injury, disfigurement?
Sentencing in SGBV cont’d
• Would compensation be appropriate to atone for
some of the injury?

• The Court should consider possibility of reprisals

against the victim, the victims family or community
and make appropriate orders?
The End